<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 25, 1999
REGISTRATION NO. 333-67383
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BANKBOSTON CORPORATION
(Exact name of Registrant as specified in its charter)
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MASSACHUSETTS 04-2471221
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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)
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GARY A. SPIESS, ESQ. JANICE B. LIVA, ESQ.
General Counsel and Clerk Assistant General Counsel and
BANKBOSTON CORPORATION Assistant Clerk
100 Federal Street BANKBOSTON CORPORATION
Boston, Massachusetts 02110 100 Federal Street
(617) 434-2870 Boston, Massachusetts 02110
(617) 434-8630
(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]
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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.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this Prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This Prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION - DATED JANUARY 25, 1999
PROSPECTUS
[BANKBOSTON LOGO APPEARS HERE]
BankBoston
BANKBOSTON CORPORATION
100 Federal Street
Boston, MA 02110
(617) 434-2200
$1,500,000,000
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
------------
This Prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission under a "shelf" registration process. Under
that process, we may sell any combination of the Securities described in this
Prospectus in one or more offerings up to a total initial offering price of
$1,500,000,000. This Prospectus provides you with a general description of the
Securities we may offer. Each time we sell Securities registered under this
shelf process, we will provide a Prospectus Supplement that will contain the
specific terms of that offering. The Prospectus Supplement may also add, update
or change information contained in this Prospectus. You should read this
Prospectus and any supplement carefully before you invest.
------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these Securities or determined if
this Prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
------------
The Securities constitute our unsecured obligations and are not savings
accounts, deposits or other obligations of any of our bank or nonbank
subsidiaries. The Securities are not insured by the Federal Deposit Insurance
Corporation, the Bank Insurance Fund or any other governmental agency.
The date of this Prospectus is , 1999.
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Section Page
------- ----
<S> <C>
BankBoston Corporation................................................... 3
Where You Can Find More Information...................................... 3
Incorporation of Information We File with the SEC........................ 3
Consolidated Ratios of Earnings to Fixed Charges and Combined Fixed
Charges and Preferred Stock Dividend Requirements....................... 4
Supervision and Regulation............................................... 4
Use of Proceeds.......................................................... 5
Description of Debt Securities........................................... 6
Description of Preferred Stock........................................... 16
Description of Common Stock.............................................. 21
Description of Capital Securities........................................ 23
Description of Securities Warrants....................................... 23
Plan of Distribution..................................................... 25
Legal Opinions........................................................... 26
Experts.................................................................. 26
</TABLE>
2
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BANKBOSTON CORPORATION
BankBoston Corporation (the "Company", "we", "us" and "our") is a bank
holding company with both national and international operations. We offer a
full range of banking services to consumers, small businesses and corporate
customers in southern New England, deliver sophisticated financial solutions to
mid-size and large corporations nationally and internationally, and provide
full-service banking in leading Latin American markets.
Our principal subsidiary is BankBoston, N.A. (the "Bank"), a national
banking association with its headquarters in Massachusetts. The Bank maintains
branches in Massachusetts, Connecticut, Rhode Island and New Hampshire and
operates a network of offices across the United States and in 20 countries in
Latin America, Asia and Europe.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission ("SEC"). You may read
and copy any reports, statements or other information that we file at the SEC's
public reference rooms in Washington, D.C., New York, New York and Chicago,
Illinois. For more information about the SEC's public reference rooms and their
copy charges, please call the SEC at 1-800-SEC-0330. Our filings with the SEC
are also available to the public from the website maintained by the SEC at
http://www.sec.gov. Our securities are listed on the New York Stock Exchange
and the Boston Stock Exchange, and such reports, proxy statements and other
information concerning us 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.
We have filed a registration statement on Form S-3 with the SEC covering
the Securities described in this Prospectus. For further information regarding
the Company and the Securities, you should refer to our registration statement
and its exhibits. This Prospectus summarizes material provisions of contracts
and other documents to which we refer you. Since the Prospectus may not contain
all the information that you may find important, you should review the full
text of these documents. We have included copies of these documents as exhibits
to our registration statement.
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information that we
file with them, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered to be part of this Prospectus, and later information filed with
the SEC will update and supersede this information. We are incorporating by
reference the documents listed below and any future filings that we make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), until this offering is completed:
1. Annual Report on Form 10-K for our fiscal year ended December 31,
1997;
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998;
3. Current Reports on Form 8-K dated January 15, 1998, April 16, 1998,
May 29, 1998, July 16, 1998, August 31, 1998, October 15, 1998,
December 17, 1998 and January 21, 1999; and
4. Description of our Common Stock, Preferred Stock and Preferred Stock
Purchase Rights contained in our registration statements filed under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
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You may request a copy of these filings at no cost by writing or
telephoning us at this address and telephone number:
BankBoston Corporation
Investor Relations
P.O. Box 2016, MA BOS 01-20-02
Boston, Massachusetts 02106-2016
(617) 434-7858.
You should rely only on the information provided in this Prospectus or in
any later Prospectus Supplement or incorporated by reference in either
document. We have not authorized anyone to provide you with different or
additional information. We are not making an offer to sell securities in any
state or country where the offer is not permitted. You should not assume that
the information in this Prospectus or any later Prospectus Supplement is
accurate as of any date other than the date on the front of the document.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDEND REQUIREMENTS
Our ratios of earnings to fixed charges and earnings to combined fixed
charges and preferred stock dividend requirements for each of the periods
indicated are as follows :
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Years Ended December 31,
-------------- ----------------------------
1998 1997 1997 1996 1995 1994 1993
------ ------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on
Deposits..................... 2.03x 2.33x 2.35x 2.24x 2.08x 1.90x 2.44x
Including Interest on
Deposits..................... 1.41 1.53 1.53 1.44 1.42 1.41 1.38
Earnings to Combined Fixed
Charges
and Preferred Stock Dividend
Requirements:
Excluding Interest on
Deposits..................... 2.00 2.20 2.24 2.09 1.96 1.79 2.13
Including Interest on
Deposits..................... 1.40 1.49 1.50 1.40 1.38 1.37 1.33
</TABLE>
For purposes of computing the above ratios, we have included in
"earnings" our consolidated net income (without taking into account
extraordinary items and the cumulative effect of changes in accounting
principles) plus applicable income taxes and fixed charges.
To compute fixed charges, excluding interest on deposits, we have
included interest expense (other than on deposits) and the portion of rent
expense that we consider approximates interest, minus sublease rental income.
To compute fixed charges, including interest on deposits, we have included all
interest expense and the portion of rent expense that we consider approximates
interest, minus sublease rental income. We calculated the pretax earnings
required for preferred stock dividends by using income tax rates for the
applicable year.
SUPERVISION AND REGULATION
We are registered with the Board of Governors of the Federal Reserve
System, which has the authority to regulate bank holding companies. The Board
of Governors expects us to act as a source of financial strength to our
subsidiary banks and to commit resources to support such subsidiary banks in
circumstances where we might not otherwise do so. The Federal Reserve Bank of
Boston also supervises and regulates the Company's activities. The Bank is
organized as a national banking association. The Office of the Comptroller of
the Currency and the FDIC are the regulatory authorities for the Bank. Our most
recent Annual Report on Form 10-K sets forth a summary of certain of these
regulations, which you may consult for further information.
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Federal and state laws can change in unpredictable ways. These changes
can have significant effects on the way in which banks may conduct business.
Recent laws have substantially increased the level of competition among
commercial banks, thrift institutions and non-banking institutions, such as
insurance companies, brokerage firms, mutual funds, investment banks and major
retailers. Two statutes have affected the banking industry by broadening the
regulatory powers of the federal banking agencies. They are the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") and the
Federal Deposit Insurance Company Improvement Act of 1991. Under FIRREA, the
FDIC can hold an FDIC-insured bank liable for any loss incurred or reasonably
expected to be incurred by the FDIC in connection with certain events relating
to that bank. These events include (i) a default by a commonly controlled FDIC-
insured bank or (ii) the FDIC providing assistance to a commonly controlled
FDIC-insured bank in danger of defaulting. "Default" generally means the
appointment of a conservator or receiver and "in danger of defaulting"
generally means the existence of certain conditions indicating that a "default"
is likely to occur if the regulators do not assist the bank. FIRREA broadened
the enforcement powers of the federal banking agencies by giving them the power
to impose fines and penalties on all financial institutions. Under FIRREA, if a
bank fails to meet capital guidelines, the FDIC can take a variety of
regulatory actions against that bank, including terminating deposit insurance.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the Securities
described in this Prospectus for our general corporate purposes. General
corporate purposes include the following: investing in our subsidiaries, making
advances to our subsidiaries, financing future acquisitions of financial
institutions and other assets, and redeeming certain of our other outstanding
Securities. The precise amounts of proceeds that we will use for various
corporate purposes and the timing of our use of the proceeds will depend upon
our funding requirements and what other funds are available to us and to our
subsidiaries at that particular time.
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DESCRIPTION OF DEBT SECURITIES
General
The Debt Securities will be our direct, unsecured general obligations.
The Debt Securities will be either our Senior Securities or our Subordinated
Securities, the provisions of which we have summarized in the Sections that
follow. We will describe the particular terms of any Debt Securities in the
Prospectus Supplement relating to those Debt Securities.
We will issue the Senior Securities under an indenture that we entered
into as of June 15, 1992, with Norwest Bank Minnesota, National Association as
Trustee (the "Senior Indenture"). We will issue the Subordinated Securities
under an indenture that we entered into as of June 15, 1992, with Norwest as
Trustee. We amended the indenture for the Subordinated Securities in the First
Supplemental Indenture dated as of June 24, 1993 (the indenture for the
Subordinated Securities, as amended, is the "Subordinated Indenture"). Under
each of these Indentures, Norwest will act as the Trustee for the security
holders. We have filed copies of the Indentures as exhibits to the Registration
Statement. For your convenience we have included references to the specific
sections of the Indentures in the descriptions below. The following summary of
selected provisions of the Indentures is not complete, however, and you should
read the Indentures for provisions that may be important to you. Capitalized
terms used in this Prospectus have the meanings specified in the Indentures.
We are a holding company and conduct most of our operations through our
subsidiaries. Our rights and the rights of our creditors, including you, to the
assets of any subsidiary of ours upon that subsidiary's liquidation or
reorganization or otherwise would be subject to the prior claims of that
subsidiary's creditors, except to the extent that we may be a creditor with
recognized claims against such subsidiary. Our subsidiaries' creditors would
include trade creditors, debt holders, secured creditors and taxing
authorities. Neither the Debt Securities nor the Indentures restrict us or any
of our subsidiaries from incurring indebtedness.
Neither of the Indentures limits the amount of Debt Securities that we
may issue. Each Indenture provides that Debt Securities may be issued up to the
principal amount that we may separately authorize from time to time. Each also
provides that the Debt Securities may be denominated in any currency or
currency unit designated by us. Unless otherwise set forth in the Prospectus
Supplement related to that offering, neither the Indentures nor the Debt
Securities will contain any provisions to afford holders of any Debt Securities
protection in the event of a takeover, recapitalization or similar
restructuring of our business. The Senior Securities will rank equally with all
of our other unsecured and unsubordinated debt. The Subordinated Securities
will rank junior to all of our Senior Indebtedness as we describe below under
"Subordination."
We may issue Debt Securities in one or more separate series of Senior or
Subordinated Securities. We will include specific terms relating to a
particular series of Debt Securities in a Prospectus Supplement relating to the
offering. The terms we will describe in the Prospectus Supplement will include
some or all of the following:
(1) The distinct title and type of the Debt Securities;
(2) The total principal amount or initial offering price of the Debt
Securities;
(3) The date or dates when the principal of the Debt Securities will be
payable;
(4) The rate at which the Debt Securities will bear interest;
(5) The date from which interest on the Debt Securities will accrue;
(6) The dates when interest on the Debt Securities will be payable and
the regular record date for such interest payment dates;
(7) The place where (i) the principal, premium, if any, and interest on
the Debt Securities will be paid, (ii) registered Debt Securities
may be surrendered for registration of transfer, and (iii) Debt
Securities may be surrendered for exchange;
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(8) Any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities;
(9) The terms and conditions upon which we will have the option to
redeem the Debt Securities;
(10) The denominations in which any registered Debt Securities will be
issuable (if other than denominations of $1,000 or integral
multiples) and the denominations in which any bearer Debt
Securities will be issuable (if other than a denomination of
$5,000);
(11) The identity of each Security Registrar, Paying Agent and Exchange
Rate Agent (if other than the Trustee);
(12) The portion of the principal amount of Debt Securities that will be
payable upon acceleration of the Maturity of the Debt Securities;
(13) The currency used to pay principal, premium and interest on such
Debt Securities (if other than U.S. Dollars) and whether you or we
may elect to have principal, premium and interest paid in a
currency other than the currency in which the Debt Securities are
denominated;
(14) Any index, formula or other method used to determine the amount of
principal, premium or interest on the Debt Securities;
(15) Any terms upon which you may convert Subordinated Securities into,
or exchange Subordinated Securities for, Capital Securities;
(16) Whether such Debt Securities are Senior Securities or Subordinated
Securities;
(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 you when a specified
event occurs;
(19) Any changes to the Events of Default, Defaults (in the case of
Subordinated Securities) or to our covenants;
(20) Whether the Debt Securities are issuable as registered Debt
Securities or bearer Debt Securities, whether there are any
restrictions relating to the form in which they are issued and
whether bearer and registered Debt Securities may be exchanged for
each other;
(21) To whom interest will be payable (i) if other than the registered
Holder (for registered Debt Securities), (ii) if other than upon
presentation and surrender of the related coupons (for bearer Debt
Securities), or (iii) if other than as specified in the Indentures
(for global Debt Securities);
(22) The time, manner and place for Debt Securities to be authenticated
and delivered if they are to be issued upon the exercise of
warrants;
(23) Whether we will pay Additional Amounts regarding any tax,
assessment or government charge to any holder of Debt Securities
who is not a United States person and, if so, whether we will have
the option to redeem such Debt Securities instead of paying such
Additional Amounts; and
(24) Any other terms of the Debt Securities.
We may issue Debt Securities as Original Issue Discount Debt Securities
to be sold at a substantial discount below their principal amount. If we issue
Original Issue Discount Debt Securities, then the special federal income tax
rules that apply will be described in the Prospectus Supplement for those Debt
Securities.
We may also issue Debt Securities upon the exercise of Debt Warrants. See
"Description of Securities Warrants."
We also have the ability under the Indentures to "reopen" a previously
issued series of Debt Securities and issue additional Debt Securities of such
series or establish additional terms of such series. We are also permitted to
issue Debt Securities with the same terms as previously issued Debt Securities.
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Registration and Transfer
We plan to issue each series of Debt Securities only as registered
securities. However, we may issue a series of Debt Securities as bearer
securities, or a combination of both registered securities and bearer
securities. If we issue Debt Securities as bearer securities they will have
interest coupons attached unless we elect to issue them as zero coupon
securities. (Section 201, 301.) If we issue bearer securities, we will describe
the U.S. federal income tax consequences and any other applicable
considerations, procedures and limitations in the Prospectus Supplement for
that offering.
You may present registered securities for transfer or exchange for other
Debt Securities of the same series at the office of our agent, Securities
Transfer and Reporting Services, Inc., in New York City, or the Bank's
principal office in Boston. The registered securities must be duly endorsed or
accompanied by a written instrument of transfer, if the Company or the Security
Registrar so requires. The agent will not impose a service charge on you for
the transfer or exchange. We may, however, require that you pay any applicable
tax or other governmental charge. We will describe any procedures for the
exchange of bearer securities for other Debt Securities of the same series in
the Prospectus Supplement for that offering. Generally, we will not allow you
to exchange registered securities for bearer securities. (Sections 301, 305,
1002.)
In general, we will issue registered securities without coupons and in
denominations of $1,000 (or integral multiples) and bearer securities in
denominations of $5,000. We may also issue both registered and bearer
securities in global form and we may issue global securities in any
denominations. (Section 301, 302.)
Global Securities
We may issue Debt Securities of a series in whole or in part in the form
of one or more global securities which we will deposit with a depositary. We
will identify the depositary in the Prospectus Supplement related to that
offering. We may issue global securities in either registered or bearer form
and in either temporary or permanent form. Unless and until it is exchanged in
whole or part for the individual Debt Securities it represents, a global
security may not be transferred except as a whole by the depositary or its
nominee. The depositary and its nominee for a global security may only transfer
the global security between themselves or their successors. (Sections 203, 303,
304.)
If we issue bearer securities in the form of global securities, we will
describe in the Prospectus Supplement for that offering the specific terms of
the depository arrangement. We will also describe in that Prospectus Supplement
any limitations and restrictions, including special U.S. federal income tax
consequences, relating to those securities.
We will make principal, premium and interest payments on global
securities to the depositary or its nominee designated as the registered owner
for such global securities. The depositary or its nominee will be responsible
for making payments to you and other holders of interests in the global
securities. We and the paying agents will treat the persons in whose names the
global securities are registered as the owners of such global securities for
all purposes. Neither we nor the paying agents have any direct responsibility
or liability for the payment of principal, premium or interest to owners of
beneficial interests in the global securities.
Payment and Paying Agents
In general, our agent will make payment of principal, premium, if any,
and interest on registered securities at its office in New York City or at the
Bank's principal office in Boston. We also have the option of paying interest
by mailing a check to you. If we make the payment by check, we will mail it to
you at your address as it appears in our records. (Sections 301, 307, 1002.)
Subject to applicable laws, we will pay principal, premium, if any, and
interest on bearer securities at an office outside the United States that we
will specify in the Prospectus Supplement related to that offering. We may also
designate from time to time another office for such payments or transfer the
payments to an
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account maintained by you with a bank located outside the United States. To
receive payment of interest on bearer securities you must surrender the coupon
for that interest payment date. We will not make any payments with respect to
bearer securities at any of our offices or agencies in the United States nor
will we mail payment checks to any address in the United States or transfer
payment to an account maintained with a bank located in the United States.
(Sections 301, 307.)
Restriction on Certain Distributions
We have agreed under the terms of the Senior Indenture to limit certain
payments and distributions while the Senior Securities are outstanding. In
particular, we have agreed that we will not make any payment or other
distribution in shares of capital stock of the Bank or its successor. We are
bound by this limitation unless the Bank or it's successor unconditionally
guarantees the payment when due of principal, premium, if any, and interest on
the Senior Securities issued pursuant to the Senior Indenture. (Section 1008.)
Restrictions on Liens
Under the terms of the Senior Indenture, we are also prohibited from,
directly or indirectly, creating, assuming or incurring any Lien upon any
shares of capital stock of the Bank or any shares of capital stock of a
Subsidiary which owns shares of capital stock of the Bank. We are subject to
this limitation except for Liens for (1) taxes, (2) assessments, (3) judgments
or (4) other governmental charges or levies. The exceptions only apply if the
amount to which the Lien relates is (1) not yet due, (2) payable without
penalty, or (3) being contested by us in good faith and we have set aside
adequate reserves on our books for that amount. (Section 1009.)
Consolidation, Merger and Sale of Assets
We may, without the consent of the holders of any Outstanding Debt
Securities, consolidate with or merge into any other corporation or convey,
transfer or lease our properties and assets substantially as an entirety.
However, we may only do this if:
(1) our successor will be a corporation organized and existing under the
laws of the United States, any state thereof or the District of
Columbia;
(2) our successor expressly assumes our obligation to pay the principal,
premium, if any, and interest on the Outstanding Debt Securities and
to perform the indenture covenants;
(3) after giving effect to the transaction, no Event of Default under
the Senior Indenture (or Default under the Subordinated Indenture),
and no event which after notice or lapse of time or both would
become an Event of Default (or Default), has occurred and is
continuing; and
(4) certain other conditions described in the Indentures are satisfied.
(Section 801.)
Modification and Waiver
We and the Trustee may modify or amend either Indenture with the consent
of the holders of 66 2/3% of the principal amount of the Outstanding Debt
Securities of each series that will be affected by the modification or
amendment. However, we cannot make any of the following modifications or
amendments without the consent of the holder of each Outstanding Debt Security
affected:
(1) change the Stated Maturity of the principal or any installment of
interest;
(2) reduce the principal amount, interest rate, or any premium payable,
or (in the case of Subordinated Securities) exchange any Debt
Securities;
(3) change our obligations to pay Additional Amounts required;
(4) reduce the amount of principal of any Original Issue Discount
Security that is due and payable upon acceleration of Maturity or
provable in bankruptcy;
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(5) adversely affect any holder's optional right of repayment;
(6) change the place, currency, or (in the case of Subordinated
Securities) class of Capital Securities for payments;
(7) impair the right to institute suit for the enforcement of any
payments on or after the date on which the payments are due;
(8) adversely affect the right to convert any convertible security (in
the case of Subordinated Securities);
(9) reduce the percentage of the principal amount of Outstanding Debt
Securities for which the holders' consent is required for
modifications, amendments, or waivers, or reduce the requirements
for quorum or voting by the holders; or
(10) modify certain provisions unless it is to increase the percentage
required to consent to amendments or modifications or to give
waivers, or to provide that other provisions cannot be modified or
waived without the consent of the holder of each Outstanding Debt
Security affected. (Section 902.)
The holders of 66 2/3% in principal amount of the Outstanding Debt
Securities of each series may waive (on behalf of all holders of that series)
compliance by us with certain terms or provisions of the applicable Indenture.
(Section 1011.) The holders of a majority in principal amount of the
Outstanding Debt Securities of any series also may waive (on behalf of all
holders of that series) most past defaults by us under the applicable
Indenture. However, the consent of the holder of each affected Debt Security is
required to waive any default by us with respect to payment or a covenant or
provision which cannot be modified or amended without the consent of the holder
of each affected Debt Security. (Section 513.)
To determine if holders having the requisite principal amount of the
Outstanding Debt Securities have given any consent, waiver, notice or demand or
otherwise taken any action, or whether quorum requirements have been satisfied,
we will calculate the principal amount of the following types of Debt
Securities in the manner described below:
(1) For an Original Issue Discount Security: the amount of principal
that would be due and payable as of the date of the determination if
its maturity had been accelerated;
(2) For a Debt Security in a Foreign Currency: the dollar equivalent of
the principal amount of such security determined as of the date of
its original issuance, (or for an Original Issue Discount Security,
the U.S. Dollar equivalent of the amount determined above,
determined as of the date of its original issuance); and
(3) For an Indexed Debt Security: the face amount of principal of the
Indexed Debt Security at its original issuance. (Section 101.)
Defeasance and Covenant Defeasance
Under the Indentures, if we take certain steps (referred to as defeasance
or covenant defeasance), we can be relieved of a number of our obligations with
respect to the Debt Securities of or within a series. To obtain that relief, we
would be required to do the following:
(1) deposit irrevocably with the Trustee as trust funds an amount in
cash, Capital Securities (in the case of certain Subordinated
Securities) or government obligations or in combination, that
provides sufficient money to pay the principal, premium, if any, and
interest on such Debt Securities on the applicable payment due
dates, and any applicable sinking fund or similar payments;
(2) deliver an opinion of counsel that the holders of such Debt
Securities will not have any U.S. federal income tax consequences as
a result of our deposit with the Trustee and termination of our
obligations; and
(3) satisfy certain other conditions specified in the Indentures.
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Despite the above steps, we cannot be relieved of the following obligations:
(1) to pay any Additional Amounts required under the Indentures;
(2) to register the transfer or exchange of Debt Securities and any
related coupons;
(3) to replace temporary or mutilated, destroyed, lost or stolen Debt
Securities and any related coupons;
(4) to maintain an office or agency in respect of the Debt Securities
and any related coupons; and
(5) to hold money for payment in trust. (Senior Indenture, Article 14;
Subordinated Indenture Article 15)
In the event that we take the steps noted above to be relieved of certain
obligations, the money, Capital Securities and government obligations that we
place on deposit with the Trustee will be sufficient to pay amounts due on the
Debt Securities to be defeased at their Stated Maturity. If such Debt
Securities are subsequently declared due and payable prior to their Stated
Maturity because of the occurrence of an Event of Default, the money, Capital
Securities and government obligations may not be sufficient to pay amounts due
at the time of acceleration. However, if the Event of Default relates to a
covenant from which we have not been relieved, we would remain liable to make
payment of the remaining amount due at the time of acceleration.
We will describe any other provisions permitting defeasance or covenant
defeasance with respect to any series of Debt Securities in the Prospectus
Supplement for that offering.
When we refer to "government obligations" we mean securities that are (1)
direct obligations of the government that issued the currency in which the
security is payable or (2) obligations of an agency or instrumentality of that
government, the payment of which is unconditionally guaranteed by such
government. In either case, these securities are full faith and credit
obligations of such government and are not callable or redeemable at the option
of the issuer, and also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such government obligation. (Section
101.)
Regarding the Trustee
The Trustee under the Indentures, Norwest, has its principal corporate
trust office at Sixth Street and Marquette Avenue, Minneapolis, Minnesota
55479. The Trustee maintains banking relationships with us and our subsidiaries
and has acted as trustee in connection with prior offerings of our securities.
SENIOR SECURITIES
The Senior Securities will be our direct, unsecured obligations. The
Senior Securities will constitute Senior Indebtedness (as defined below) and
will rank equally with our other Senior Indebtedness.
Events of Default
The following will be Events of Default under the Senior Indenture with
respect to Senior Securities of any series:
(1) our failure to pay principal or premium, if any, on any Senior
Security of that series at Maturity;
(2) our failure to pay, continued for 30 days, any interest on any
Senior Security of that series when due and payable;
(3) our failure to deposit any sinking fund payment in respect of any
Senior Security of that series when due;
(4) our failure to perform any of our covenants or warranties in the
Senior Indenture (but not if such covenant or warranty is solely for
the benefit of another series of Senior Securities) continued for 60
days after we receive written notice provided for in the Senior
Indenture;
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(5) our default or a default by the Bank under certain indebtedness for
money borrowed in an aggregate principal amount that exceeds
$3,000,000 (including a default with respect to Senior Securities of
another series), provided that:
(i) such default results in the acceleration of such indebtedness,
and
(ii) such acceleration is not rescinded or annulled, or the
indebtedness discharged by us, within ten days after we
receive written notice provided for in the Senior Indenture;
(6) certain events relating to bankruptcy, insolvency or reorganization
of us or the Bank; and
(7) any other Event of Default with respect to Senior Securities of that
series. (Senior Indenture, Section 501.)
If an Event of Default with respect to any series of Senior Securities
occurs and continues, the Trustee or the holders of at least 25% in aggregate
principal amount of the Outstanding Senior Securities of that series may
declare the principal amount of all the Senior Securities of that series to be
due and payable immediately. If the Senior Securities of that series are
Original Issue Discount Senior Securities or Indexed Securities, then the terms
of that series will specify the portion of the principal amount of such Senior
Securities that may declare an acceleration and the portion of the principal
amount that will be due and payable upon such declaration. To make a
declaration, the Trustee must deliver a written notice to us (and if the
declaration is made by holders, they must deliver such written notice to the
Trustee as well as to us). Upon any declaration, the principal amount (or
specified amount) will become immediately due and payable. At any time after
the Trustee or the holders have made a declaration of acceleration with respect
to Senior Securities of any series, but before the Trustee has obtained a
judgment or decree for payment of the money due, 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.
This rescission by the holders could occur only if we have made or provided for
all payments due (other than those due as a result of acceleration) on the
Senior Securities of that series and (i) all Events of Default with respect to
Senior Securities of that series have been cured by us or (ii) if permitted,
waived by the holders of at least a majority in aggregate principal amount of
the Outstanding Senior Securities of that series. (Senior Indenture, Section
502.)
Other than its duty to act with the required standard of care upon the
occurrence of a default, the Trustee is not obligated to exercise any of its
rights or powers under the Senior Indenture at the request, order or direction
of any holders unless the holders offer the Trustee reasonable indemnity or
security against the costs, expenses and liabilities which may be incurred.
(Senior Indenture, Section 602.) Subject to certain conditions, the holders of
a majority in principal amount of any series of Senior Securities may direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or for exercising any power conferred upon the
Trustee, for that series. (Senior Indenture, Section 512.)
Once a year, we are required to deliver an officers' certificate to the
Trustee. In this certificate we certify as to our performance and observance of
certain terms, provisions and conditions in the Senior Indenture and as to the
absence of default. (Senior Indenture, Section 1010.)
SUBORDINATED SECURITIES
The Subordinated Securities will be our direct, unsecured obligations.
Our obligations 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 Stated Maturity of the Subordinated Securities will be subject
to acceleration only in the case of certain events of bankruptcy, insolvency or
reorganization of us or the receivership of the Bank. See "Events of Default;
Defaults" below.
Subordination
Our obligation 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 our obligations to the
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holders of our Senior Indebtedness. (Subordinated Indenture, Section 1301.)
"Senior Indebtedness" is defined to include:
(a) any obligation of ours, or any obligation of another guaranteed by
us, for the repayment of borrowed money,
(b) any deferred obligations for the payment of the purchase price of
property or assets,
(c) all of our obligations associated with derivative products such as
interest rate and foreign exchange rate contracts, commodity
contracts and similar arrangements, in each case whether existing
currently or subsequently created, assumed or incurred, and
(d) any deferrals, renewals or extensions of such Senior Indebtedness.
(Subordinated Indenture, Section 101.)
Senior Indebtedness does not include:
(i) our indebtedness described in clauses (a) and (b) above which
specifically by its terms ranks equally with and not prior to the
Subordinated Securities, and
(ii) our indebtedness described in clauses (a) and (b) above which
specifically by its terms ranks junior to and not equally with or
prior to the Subordinated Securities.
Indebtedness that ranks equally with the Subordinated Securities includes our
following obligations:
(1) Floating Rate Subordinated Notes Due 2001, issued pursuant to a
Fiscal and Paying Agency Agreement, dated as of February 10, 1986,
between us and Bankers Trust Company, as fiscal agent;
(2) 6 7/8% Subordinated Notes Due 2003, issued under the Subordinated
Indenture on June 30, 1993;
(3) 6 5/8% Subordinated Notes Due 2005, issued under the Subordinated
Indenture on November 22, 1993; and
(4) 6 5/8% Subordinated Notes Due 2004, issued under the Subordinated
Indenture on January 12, 1994.
In the event of any bankruptcy, insolvency, reorganization or other
similar proceeding relating to us, whether voluntary or involuntary, all of our
obligations to holders of Senior Indebtedness (other than our obligations
associated with derivative products) 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 bankruptcy, insolvency, reorganization or other
similar proceeding, holders of the Subordinated Securities of any series,
together with holders of indebtedness ranking equally with the Subordinated
Securities, shall be entitled, ratably, to be paid amounts that are due to
them, but only from assets remaining after we pay in full the amounts that we
owe on our Senior Indebtedness (other than our obligations associated with
derivative products). We will make these payments before we make any payment or
other distribution on account of any capital stock or any indebtedness that
ranks junior to the Subordinated Securities. However, if we have paid in full
all of the sums that we owe with respect to our Senior Indebtedness (other than
our obligations associated with derivative products) and creditors in respect
of our obligations associated with such derivative products have not received
payment in full of amounts due to them, then the available remaining assets
shall be applied to payment in full of those obligations before any payment is
made on the Subordinated Securities. (Subordinated Indenture, Section 1301.)
In the event that we are in default on any of our Senior Indebtedness
(other than obligations associated with derivative products) or in the event
that any such default would occur as a result of certain payments, then we may
not make any payments on the Subordinated Securities or effect any exchange or
retirement of any of the Subordinated Securities unless and until such default
has been cured or waived or otherwise ceases to exist.
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(Subordinated Indenture, Section 1303.) Because of these subordination
provisions, if we become insolvent, then holders of the Subordinated Securities
may recover less, ratably, than our other creditors, including holders of
Senior Securities.
Events of Default; Defaults
The following will be Events of Default under the Subordinated Indenture
with respect to Subordinated Securities of any series:
(1) certain events in bankruptcy, insolvency or reorganization of us or
the receivership of the Bank; and
(2) 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 any series of Subordinated
Securities occurs and continues, the Trustee or the holders of at least 25% in
aggregate principal amount of the Outstanding Subordinated Securities of that
series may declare the principal amount of all the Subordinated Securities of
that series to be due and payable immediately. If the Subordinated Securities
of that series are Original Issue Discount Subordinated Securities or Indexed
Securities, then the terms of that series will specify the portion of the
principal amount that will be due and payable upon such declaration. To make
such a declaration, the Trustee must deliver a written notice to us (and if the
declaration is made by holders, they must deliver such written notice to the
Trustee as well as to us). Upon any declaration, the principal amount (or
specified amount) will become immediately due and payable. In the event of our
bankruptcy or insolvency, a Federal bankruptcy court would have broad powers to
enforce the foregoing provisions and determine the nature and status of the
payment claims of the holders of the Subordinated Securities. At any time after
the Trustee or the holders have made a declaration of acceleration with respect
to Subordinated Securities of any series, but before the Trustee has obtained a
judgment or decree for payment of the money due, the holders of a majority in
principal amount of Outstanding Subordinated Securities of that series may,
under certain circumstances, rescind and annul such declaration and its
consequences. This rescission by the holders could occur if we have made or
provided for all payments due (other than those due as a result of
acceleration) on the Subordinated Securities of that series and (i) all Events
of Default with respect to Subordinated Securities of that series have been
cured by us or (ii) if permitted, waived by the holders of at least a majority
in aggregate principal amount of the Outstanding Subordinated Securities of
that series. (Subordinated Indenture, Section 502.)
The following events will be Defaults under the Subordinated Indenture
with respect to Subordinated Securities of any series:
(1) an Event of Default with respect to such series of Subordinated
Securities;
(2) our failure to pay principal or premium, if any, (including our
failure to deliver any Capital Securities in exchange for or upon
the conversion of Subordinated Securities) on any Subordinated
Security of that series at Maturity;
(3) our failure to pay, continued for 30 days, any interest on any
Subordinated Security of that series when due and payable;
(4) our failure to deposit any sinking fund payment in respect of any
Subordinated Security of that series when due;
(5) our failure to perform any of our covenants or warranties in the
Subordinated Indenture (but not if such covenant or warranty is
solely for the benefit of another series of Subordinated
Securities), continued for 60 days after the written notice provided
for in the Subordinated Indenture;
(6) our default or a default by the Bank under certain indebtedness for
money borrowed in an aggregate principal amount exceeding $3,000,000
(including a default with respect to Subordinated Securities of
another series), provided that:
(i) such default results in the acceleration of such indebtedness,
and
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(ii) such acceleration is not rescinded or annulled, or the
indebtedness discharged by us, within ten days after we
receive written notice provided for in the Senior
Indebtedness; and
(7) any other default with respect to Subordinated Securities of that
series. (Subordinated Indenture, Section 507.)
There will be no right of acceleration of the payment of principal of the
Subordinated Securities of such series if we default in the payment or default
in the performance of any covenant or agreement relating to the Subordinated
Securities or the Subordinated Indenture (including any obligation to exchange
Capital Securities for Subordinated Securities of such series), unless the
terms of a series of Subordinated Securities provide otherwise. If we Default
on any series of the Subordinated Securities, then the Trustee may seek to
enforce its rights and the rights of the holders of Subordinated Securities of
such series or seek the performance of any covenant or agreement in the
Subordinated Indenture. (Subordinated Indenture, Section 503.)
Other than its duty to exercise the required standard of care upon the
occurrence of a Default, the Trustee is not obligated to exercise any of its
rights or powers under the Subordinated Indenture at the request, order or
direction of any holders unless the holders offer the Trustee reasonable
indemnity or security against the costs, expenses and liabilities which may be
incurred. (Subordinated Indenture, Section 602.) Subject to certain conditions,
the holders of a majority in principal amount of any series of Subordinated
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or for exercising any power conferred
upon the Trustee, for any series of Debt Securities. (Subordinated Indenture,
Section 512.)
Once a year, we are required to deliver an officers' certificate to the
Trustee. In this certificate we certify as to our performance and observance of
the terms, provisions and conditions in the Subordinated Indenture and as to
the absence of default. (Subordinated Indenture, Section 1010.)
Conversion
We will describe in the Prospectus Supplement for any series of
Subordinated Securities, the terms, if any, on which that series is convertible
into Capital Securities ("Subordinated Convertible Securities"). Such
Subordinated Convertible Securities will be convertible into Capital Securities
at the conversion price and at the times set forth in the Prospectus
Supplement. The terms of such Subordinated Convertible Securities may also
include a right for us to redeem, exchange, repay or repurchase those
Subordinated Convertible Securities.
Exchangeability
The holders of Subordinated Securities of a series may be obligated at
any time or at Maturity to exchange them for our Capital Securities. We will
describe the terms of any exchange and any Capital Securities in the Prospectus
Supplement relating to such series of Subordinated Securities. We describe our
Preferred Stock, Common Stock, and Capital Securities below under "Description
of Preferred Stock," "Description of Common Stock," and "Description of Capital
Securities," respectively.
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DESCRIPTION OF PREFERRED STOCK
The following summary describes general terms of our Preferred Stock. If
the Board of Directors authorizes a new series of Preferred Stock, then the
specific provisions establishing the series will be set forth in a Certificate
of Vote of Directors. The Certificate of Vote will then be filed with the SEC
and with the Massachusetts Secretary of State as an amendment to our Restated
Articles of Organization. The terms of any series of the Preferred Stock
offered by us will also be described in the Prospectus Supplement for that
offering. Currently, we have no shares of Preferred Stock outstanding.
General
Under our Articles of Organization, our Board of Directors may provide
for the issuance of up to 10,000,000 shares of Preferred Stock, without par
value, in one or more series. When establishing a series of Preferred Stock,
the Board will determine the following matters with respect to that series:
(1) designations or titles;
(2) dividend rates;
(3) rights in the event of liquidation, distribution or sale of assets
or dissolution or winding up;
(4) sinking fund provisions;
(5) redemption or purchase account provisions;
(6) conversion provisions; and
(7) voting rights.
Holders of shares of Preferred Stock do not have any preemptive rights as
to any future issuances of preferred stock by us. Each series of our Preferred
Stock will have a liquidation preference. The liquidation preference does not
reflect the price at which the shares will trade in the market. The market
price of any series of our Preferred Stock will fluctuate with changes in
market and economic conditions as well as with changes in our financial
condition and prospects.
When we issue shares of Preferred Stock, the shares are fully paid and
non-assessable. There is a provision of Massachusetts law (MGL Sec. 45, C.156B)
that relates to distributions by us to our stockholders (other than a
distribution of our stock). If we make a distribution when we are insolvent, or
that renders us insolvent, then our stockholders would be required to pay back
to us the amount of the distribution we made to them (or the portion of the
distribution that caused us to become insolvent).
Rank
With respect to dividend rights and rights on liquidation, winding up and
dissolution, any series of our Preferred Stock will rank senior to all classes
of our common stock and our Junior Participating Preferred Stock, Series D, and
any equity securities we issue that by their terms rank junior to the Preferred
Stock (collectively referred to as "junior securities").
With respect to dividend rights and rights on liquidation, winding up and
dissolution, any series of Preferred Stock will rank equally with any equity
securities we issue that by their terms rank equally with the Preferred Stock
(collectively referred to as "parity securities"). Likewise, with respect to
such rights, the shares of any series of Preferred Stock will rank junior to
any equity securities we issue that by their terms rank senior to the Preferred
Stock (collectively referred to as "Senior Securities").
For these purposes, the term "equity securities" does not include debt
securities convertible into or exchangeable for equity securities.
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Dividends
You will be entitled to receive cash dividends on your shares of
Preferred Stock, when, as and if our Board of Directors declares those
dividends out of funds legally available for that purpose. We will describe the
rates and payment dates applicable to each series of Preferred Stock in the
Prospectus Supplement relating to that offering. We will pay dividends to the
holders of record of the Preferred Stock that appear on our books (or, if
applicable, the records of the Depositary) on the record dates set by our
Board. The dividends on any series of Preferred Stock may be cumulative or non-
cumulative.
Our Board may not declare and we may not pay (or set apart funds for the
payment of) any full dividends on any parity securities unless we have paid or
set apart funds for the payment of dividends on the Preferred Stock. If we do
not pay full dividends, 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
We will describe in the Prospectus Supplement for any series of the
Preferred Stock 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 our Preferred Stock which is convertible, we will
reserve and keep available the number of shares of Preferred Stock or Capital
Securities that are deliverable upon the conversion of the shares of that
series. We will not issue any fractional shares or scrip for fractional shares
of Preferred Stock or Capital Securities in connection with a conversion. In
lieu of issuing fractional shares, we will make cash payment for all such
fractional shares. We may elect to make this cash payment equal to either (1)
the current market price of a holder's fractional interest, or (2) the holder's
proportionate interest in the net proceeds (following the deduction of
applicable transaction costs) from the sale by an agent of shares of Preferred
Stock or Capital Securities representing the aggregate of all holders'
fractional shares.
If you are the holder of shares of Preferred Stock at the close of
business on a dividend payment record date, you are entitled to receive the
dividend payable on such shares on the corresponding dividend payment date.
Your right to that dividend will continue to exist notwithstanding any
subsequent conversion of the shares or our default in payment of the dividend
due. (If your shares of Preferred Stock are called for redemption and the
redemption date falls between a record date and a dividend payment date, then
you will receive accrued and unpaid dividends to such redemption date instead
of the regular dividend for that period.) Except as noted, we will not make any
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 that we issue upon conversion.
Exchangeability
The holders of shares of Preferred Stock of any series may be obligated
at any time or at maturity to exchange the shares for our Capital Securities or
our other debt securities. We will describe the terms of any exchange and any
Capital Securities or other debt securities in the Prospectus Supplement
relating to that offering. Our Capital Securities are described below under
"Description of Capital Securities."
Redemption
In general, a series of Preferred Stock may be redeemable at any time, in
whole or in part, at our option or that of the holder upon terms and at the
redemption prices set forth in the Prospectus Supplement relating to such
series. In the event of partial redemptions of our Preferred Stock, our Board
of Directors will decide the manner in which the shares to be redeemed are to
be selected.
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On and after a redemption date, dividends cease to accrue on shares of
Preferred Stock called for redemption unless we default in the payment of the
redemption price. Your rights as a holder of such shares will terminate on the
redemption date, except for the right to receive the redemption price.
Liquidation Preference
If you purchase shares of a series of our Preferred Stock that rank
senior to our junior securities, then in the event of our liquidation,
dissolution or winding up, whether voluntary or involuntarily, you will be
entitled to receive a liquidation payment plus an amount equal to any accrued
and unpaid dividends. The payment will be made to you out of our assets that
are available for distribution to stockholders. The payment on your Preferred
Stock will be made prior to any distribution to holders of any junior
securities, including our Common Stock. We will describe the specific
provisions with respect to the liquidation payment to which you will be
entitled on any series of Preferred Stock in the Prospectus Supplement with
respect to that offering.
If the amounts to which you are entitled upon our liquidation,
dissolution or winding up are not paid in full, then you and the other holders
of the Preferred Stock of that series will be entitled to share in any
distribution of our assets. You and the other holder of that series and the
holders of any parity securities will share ratably in proportion to the full
liquidation preferences to which each of you is entitled. After you have
received payment of the full amount of the liquidation preference to which you
are entitled, you will not be entitled to any further participation in any
distribution of our assets.
We shall not be deemed to have been voluntary or involuntarily
liquidated, dissolved or wound up in the following instances:
(1) the merger or consolidation of us with or into one or more
corporations pursuant to any statute which provides in effect that
our stockholders shall continue as stockholders of the continuing or
combined corporation; or
(2) the acquisition by us of assets or stock of another corporation.
Voting Rights
In general, if you purchase shares of Preferred Stock, you will not have
voting rights with respect to those shares. Under Massachusetts law, however,
you are entitled to vote in certain limited circumstances. If we wish to amend
our Restated Articles of Organization and such amendment would adversely affect
the rights of a particular class or series of stock, we would be required to
obtain the affirmative vote of at least two-thirds of the shares of that class
or series. If you were a holder of shares of the affected class or series, you
would be entitled to vote on the proposed amendment. In such an instance, all
series of a class of stock which are adversely affected in the same manner vote
together as one class and any other series, which is adversely affected in a
different manner, votes as a separate class.
You would also be entitled to a vote during any period in which dividends
on the series of Preferred Stock that you hold are cumulatively in arrears in
the amount of six or more full quarterly dividends. Under those circumstances,
you and the other holders of that series, would be entitled to elect one
director to serve until we have cured the arrearage. We will describe any
additional provisions related to voting rights for a particular series of
Preferred Stock in the Prospectus Supplement for that offering.
The Board of Governors of the Federal Reserve oversees matters relating
to bank holding companies like us. Under its regulations, if the holders of
shares of any series of our Preferred Stock become entitled to vote for the
election of directors, that series may be deemed a "class of voting
securities." Upon that occurrence, if you held 25% or more of that series (or
5% if you otherwise exercise a controlling influence over us) you might become
subject to regulation as a bank holding company. If you held a lesser amount
and wished to acquire or retain shares of that series, you might need the
approval of the Board of Governors to do so depending on the amount of shares
you hold.
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Depositary Shares
General. We may from time to time elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In such an event,
we 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.
We will deposit the shares of any series of Preferred Stock represented
by Depositary Shares under a Deposit Agreement between us and a bank or trust
company that we select to act as Depositary. The bank or trust company that we
select will have its principal office in the United States and a combined
capital and surplus of at least $50,000,000. The rights of each owner of a
Depositary Share will be set forth in the Deposit Agreement. In general, you
would be entitled to all the rights and preferences of the Preferred Stock
represented by your Depositary Share, in proportion to the applicable fraction
represented by such Depositary Share. These rights include dividend, voting,
redemption, conversion and liquidation rights.
The Depositary will issue Depositary Receipts that represent the
Depositary Shares. The Depositary will distribute the Depositary Receipts to
those persons purchasing the fractional shares of Preferred Stock in accordance
with the terms of the offering. We have filed the forms of Deposit Agreement
and Depositary Receipt as exhibits to the Registration Statement. Please review
those documents for further details not set forth in the summary below.
We may order the Depositary to issue temporary Depositary Receipts to
holders in the event the definitive receipts are not ready at the time of
distribution. The temporary Depositary Receipts are substantially identical to
the definitive Depositary Receipts and entitle the holders to all the rights
pertaining to the definitive Depositary Receipts. In such an event, we will
have the definitive Depositary Receipts prepared without unreasonable delay.
The holders may exchange the temporary Depositary Receipts for definitive
Depositary Receipts at our expense.
Dividends and Other Distributions. The Depositary will distribute cash
dividends or other cash distributions received from us to the record holders of
Depositary Shares relating to the Preferred Stock. The Depositary will make the
distributions to each record holder in proportion to the numbers of such
Depositary Shares owned by such holder.
In the event of a distribution other than in cash, the Depositary will
distribute the property received from us to the record holders of Depositary
Shares. If the Depositary determines that it is not feasible to make such
distribution, it may, with our approval, sell such property and distribute the
net proceeds from such sale to such holders.
Redemption or Exchange of Stock. If we decide to redeem a series of
Preferred Stock represented by Depositary Shares, the Depositary will redeem
the Depositary Shares from the proceeds resulting from the redemption of the
Preferred Stock. If we decide to exchange a series of Preferred Stock
represented by Depositary Shares, the Depositary will exchange the Depositary
Shares for the Capital Securities or other debt securities to be issued in
exchange for the Preferred Stock in accordance with the terms of such series of
Preferred Stock. The Depositary will redeem or exchange the Depositary Shares
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 we redeem or exchange 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 the Depositary is to redeem or
exchange fewer than all the Depositary Shares, 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 that we may determine.
Withdrawal of Stock. As a holder of Depositary Shares, you may surrender
your Depositary Receipts to the Depositary and receive the number of whole
shares of the related series of Preferred Stock and
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any money or other property represented by such Depositary Receipts. You 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. You
will not thereafter be entitled to deposit such Preferred Stock under the
Deposit Agreement or to receive Depositary Receipts for your shares of
Preferred Stock. If the Depositary Shares you surrendered exceed the number of
Depositary Shares that represent the number of whole shares of Preferred Stock
to be withdrawn, the Depositary will deliver to you at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares.
Voting the Preferred Stock. We will send to the Depositary all notices of
meetings 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) may instruct the
Depositary how to vote with respect to the amount of 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. We agree to
take all reasonable actions 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 for which it has not received specific instructions from
the holders of Depositary Shares representing such Preferred Stock.
Conversion Rights. As a holder of Depositary Shares, you may instruct us
to convert your Depositary Shares into Capital Securities or other Preferred
Stock in accordance with the terms of the series of Preferred Stock for which
you hold Depositary Shares. When you deliver such instructions you must also
surrender your Depositary Receipts. We will convert the shares of Preferred
Stock for which you hold Depositary Shares into a specified number of whole
shares of our Capital Securities or our other Preferred Stock (as the case may
be, in accordance with the terms of such series of the Preferred Stock). We
will determine the number of resulting shares that you are to receive by
dividing the aggregate liquidation preference of such Depositary Shares by the
Conversion Price then in effect. We may adjust the Conversion Price from time
to time. We will make a cash payment to you in lieu of any fractional shares
that would result from the conversion.
Amendment and Termination of the Deposit Agreement. We and the Depositary
may at any time agree to amend the form of Depositary Receipt that evidences
the Depositary Shares and any provision of the Deposit Agreement. We may not,
however, make any amendment that materially and adversely alters the rights of
the holders of Depositary Shares unless the holders of at least a majority of
the Depositary Shares then outstanding have approved such amendment. The
Deposit Agreement will automatically terminate if any of the following occurs:
(1) we have redeemed all outstanding Depositary Shares;
(2) 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
(3) there has been a final distribution in respect of the Preferred
Stock in connection with any liquidation, dissolution or winding up
of our business and such distribution has been distributed to the
holders of Depositary Shares.
We may also terminate the Deposit Agreement at any time upon 60 days
prior written notice to the Depositary. If we terminate the Deposit Agreement,
the Depositary will deliver to the record holders, upon surrender of the
Depositary Receipts, the number of whole or fractional shares of Preferred
Stock as are represented by their Depositary Receipts.
Charges of Depositary. We will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangements. We will also pay all charges of the Depositary in connection with
(1) the initial deposit of the Preferred Stock, (2) the initial issuance of the
Depositary Shares, (3) all withdrawals of shares of Preferred Stock by owners
of Depositary Shares, and (4) any redemption or
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exchange of the Preferred Stock. As a holder of Depositary Shares, you must pay
any other transfer and other taxes and governmental charges and such other
charges or expenses that the Deposit Agreement expressly provides are for your
account.
Miscellaneous. We will provide to the Depositary all reports and
communications that we are required to furnish to our Preferred Stock holders.
The Depositary will forward these reports and communications to the holders of
the Depositary Shares.
We and the Depositary are not liable for failing to perform our
obligations under the Deposit Agreement if our performance of those obligations
is prevented or delayed by law or any circumstance beyond our control. Our
obligations under the Deposit Agreement and those of the Depositary are limited
to performance in good faith of our duties under the agreement. We and the
Depositary are not obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or Preferred Stock unless satisfactory
indemnity is furnished. The Depositary may rely upon (1) written advice of
counsel or accountants, (2) information it receives from persons presenting
Preferred Stock for deposit, (3) holders of Depositary Receipts, (4) other
persons it believes to be competent, and (5) documents it believes to be
genuine.
Resignation and Removal of Depositary. The Depositary may resign at any
time by giving us notice. We also may remove the Depositary at any time by
giving it notice. We will appoint a successor Depositary prior to any such
resignation or removal becoming effective. We must appoint a successor
Depositary within 60 days after delivery of the notice of resignation or
removal. The successor Depositary 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
Our Common Stock as of November 30, 1998 consisted of 500,000,000
authorized shares, par value $1.00 per share, of which there were 294,952,148
shares outstanding. Our Common Stock is traded on the New York Stock Exchange
and the Boston Stock Exchange. The Bank, through its agent Boston EquiServe, is
the transfer agent and registrar for our Common Stock.
We may issue Common Stock from time to time. Our Board of Directors must
approve the amount of stock we sell and the price for which it is sold. Holders
of our Common Stock do not have any preferential rights or preemptive rights to
buy or subscribe for capital stock or other securities that we may issue. Our
Common Stock does not have any redemption or sinking fund provisions or any
conversion rights.
We issue shares of our Common Stock in connection with our dividend
reinvestment and common stock purchase plan. We also issue shares in connection
with our employee benefit, stock option and incentive plans (and those of our
subsidiaries).
When we issue shares of Common Stock, the shares will be fully paid and
non-assessable. There is a provision of Massachusetts law (MGL Sec. 45, C.156B)
that relates to distributions by us to our stockholders (other than a
distribution of our stock). If we make a distribution when we are insolvent, or
that renders us insolvent, then our stockholders would be required to pay back
to us the amount of the distribution we made to them (or the portion of the
distribution that caused us to become insolvent).
Liquidation
If we liquidate, dissolve, or wind up, whether voluntarily or
involuntarily, then you, as a holder of our Common Stock, would be entitled to
share proportionally in any of our assets to which Common Stock holders are
entitled when such events occur. Your rights, however, would rank behind those
of our creditors and behind those of any holders of our Preferred Stock.
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Voting
If you are a holder of our Common Stock, you are entitled to one vote per
share for all matters on which stockholders are entitled to vote. Our Common
Stock has non-cumulative voting rights. This means holders of the majority of
our shares can elect all of our directors.
Dividends
If our Board of Directors declares a dividend (out of funds legally
available for dividends), holders of our Common Stock are entitled to share
equally (share for share) in such dividends whether they are payable in cash,
stock or other property. We cannot pay any Common Stock dividends, however,
until we have paid any accrued but unpaid Preferred Stock dividends.
Stockholder Rights Plan
In 1990, our Board of Directors adopted a stockholder rights program and
entered into a Rights Agreement with the Bank, as rights agent. Under the
program, each of our common stockholders received a dividend of one Preferred
Stock purchase right for each outstanding share of our Common Stock that the
stockholder owned at the time of the rights dividend. We refer to these
Preferred Stock purchase rights as the "rights." Each share of common stock
issued after our common stockholders received the rights dividend has also
received a right. As a result of our 2-for-1 stock split in June, 1998, the
rights have been adjusted so that one-half of a right is associated with each
currently outstanding share of our Common Stock. Each newly issued share of
Common Stock will also have one-half of a right associated with it under the
program. The rights trade automatically with our shares of Common Stock and
become exercisable only under certain circumstances described below. The
purpose of the rights is to encourage potential acquirors to negotiate with our
Board of Directors prior to attempting a takeover bid and to provide our Board
with leverage in negotiating on behalf of all of our stockholders the terms of
any proposed takeover. The rights may have certain anti-takeover effects. They
should not, however, interfere with any merger or other business combination
approved by our Board of Directors.
Until a right is exercised, the holder of a right will not have any
rights as a stockholder. When the rights become exercisable, holders of the
rights will be able to purchase from us a unit equal to one one-thousandth of a
share of our Series D Junior Participating Preferred Stock at a price of $50
per unit, subject to adjustment. In general, the rights will become exercisable
upon the earlier of:
. ten days following a public announcement by us that a person or group
has acquired (i) beneficial ownership of 15% or more of our Common
Stock or (ii) voting securities representing 15% or more of the total
voting power of the Company, or
. ten business days (or a later date if determined by our Board) after
the beginning of a tender offer or exchange offer that would result in
a person or group beneficially owning (i) 15% or more of our Common
Stock or (ii) voting securities representing 15% or more of the total
voting power of the Company.
In general, if a person or group becomes the beneficial owner of 15% or
more of our Common Stock or of voting securities representing 15% or more of
our total voting power, each right (other than those owned by that person or
group) will then entitle its holder to receive, upon exercise, Common Stock
equal to two times the exercise price of the right. We refer to this occurrence
as a "flip-in event". A flip-in event does not occur if there is an offer for
all of our outstanding shares of Common Stock and voting securities that our
Board believes is fair to our stockholders and in the Company's best interest.
In addition, at any time after a flip-in event, the Board may give rights
holders (other than rights held by the person or group who triggered the flip-
in event) the opportunity to exchange the rights for our Common Stock (one
share of our Common Stock for each right). If after we announce that someone
has acquired beneficial ownership of 15% or more of the Common Stock or voting
securities representing 15% or more of the total voting power of the Company,
we are acquired or more than 50% of our assets, cash flow or earning
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power is sold or transferred, then each right (other than those owned by the
person or group who triggered the flip-in event), will entitle the holder to
receive, upon exercise, shares of stock in that person or group having a value
equal to two times the exercise price of the right.
We may redeem the rights at $.01 per right at any time before the date
that is ten days after the date in which 15% or more of our Common Stock or
voting power is acquired. We may extend this redemption period at any time
while the rights are still redeemable. The rights will expire at the close of
business on July 12, 2000 unless we redeem or exchange them before that date.
In December, 1998, our Board of Directors renewed the existing Rights
Agreement by adopting a Renewed Rights Agreement. The terms of the Renewed
Rights Agreement are substantially similar to those of the existing Rights
agreement. Under the Renewed Rights Agreement, however, the exercise price will
be $160 per unit and the beneficial ownership percentage relating to the
exercisability of the rights will be 10%. The new rights will be issued
effective with the expiration or earlier termination of the existing rights.
The above description of the rights plan is not intended to be a complete
description. For a full description of the rights plan, you should read the
existing Rights Agreement, as amended through December 12, 1995, and the
Renewed Rights Agreement. The existing Rights Agreement and the Renewed Rights
Agreement are between us and the Bank as rights agent. A copy of the existing
Rights Agreement is included as an exhibit to our Registration Statement on
Form 8-A dated July 2, 1990 and our Annual Report on Form 10-K for the year
ended December 31, 1996. A copy of the Renewed Rights Agreement is included as
an exhibit to our Current Report on Form 8-K dated December 17, 1998. You may
obtain a copy of these agreements at no charge by writing to us at the address
listed on page 4.
DESCRIPTION OF CAPITAL SECURITIES
General
A Prospectus Supplement may provide that we may issue Capital Securities
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 the Board of Governors (or our primary federal
banking regulator at that time) permits, our other Securities. The Prospectus
Supplement relating to a series of Subordinated Securities or Preferred Stock
which are exchangeable for or convertible into Capital Securities will contain
a description of the Capital Securities.
Tender Offer Rules
The SEC's rules and regulations relating to tender offers may be
applicable to exchanges or conversions such as that of Capital Securities for
Subordinated Securities or for Preferred Stock of any series. The applicable
SEC rules are Rules 13e-4 and 14e-1. If Rule 13e-4 or Rule 14e-1 (or any
successor rule or rules) applies to such transactions at the time of such
exchange or conversion, we will comply with such rule and will afford holders
of such Subordinated Securities or Preferred Stock all rights to which they are
entitled. In addition, we will make all filings required by such rule.
DESCRIPTION OF SECURITIES WARRANTS
We may issue Securities Warrants for the purchase of other Debt
Securities or Preferred Stock or Common Stock. We may issue these Securities
Warrants together with any Debt Securities or Preferred Stock or Common Stock
offered by any Prospectus Supplement or we may issue them separately. We will
issue Securities Warrants under Securities Warrant Agreements to be entered
into between us and a bank or trust company, as the Securities Warrant Agent.
The specific information will be 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 Warrant, is filed as an exhibit to the Registration Statement. The
form reflects the alternative provisions that we may include in the Securities
Warrant
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Agreements that will be entered into with respect to particular offerings of
Securities Warrants. The following summaries of certain provisions of the
Securities Warrant Agreement and the Securities Warrant Certificates are not
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 including the definitions therein of certain terms.
Wherever we refer to defined terms of the Securities Warrant Agreement, we
intend that such defined terms shall be incorporated herein by reference.
General
The Prospectus Supplement relating to the particular issue of Securities
Warrants 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 we offer Securities Warrants 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 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 we will issue the offered Securities Warrants represented by
the Securities Warrant Certificates 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.
A holder of Securities Warrant Certificates may exchange them on the
terms specified in the Prospectus Supplement for new Securities Warrant
Certificates of different denominations. A holder of Securities Warrants may
exercise such Securities Warrants at the corporate trust office of the
Securities Warrant Agent or at any other office indicated in the Prospectus
Supplement relating to those Securities Warrants. Prior to exercising 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. The rights that a holder of Securities Warrants
would not have prior to exercise include:
(1) 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
(2) the right in the case of Preferred Stock Warrants and Common Stock
Warrants to receive payments of dividends or distributions of any
kind, if any, on the Preferred Stock and Common Stock, respectively,
or to exercise any applicable right to vote.
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Exercise of Warrants
Each Securities Warrant will entitle the holder to purchase a certain
principal amount of Debt Securities or a certain number of shares of Preferred
Stock or Common Stock, at a certain exercise price. In each case, we shall set
forth this information in the Prospectus Supplement relating to the Securities
Warrants. Your right to purchase the Securities will be contingent on your
paying such exercise price in full in the currency and in the manner specified
in the Prospectus Supplement. You may exercise your Securities Warrants at any
time up to the close of business on the expiration date (or such later date to
which we may extend such expiration date). Securities Warrants that you do not
exercise will become void.
We will forward the Debt Securities or Preferred Stock or Common Stock to
you upon the exercise of the Securities Warrant after the Securities Warrant
Agent receives (i) payment of the exercise price and (ii) the Securities
Warrant Certificate properly completed and duly executed. If you exercise fewer
than all of the Securities Warrants represented by such Warrant Certificate, we
will issue you a new Securities Warrant Certificate for the remaining number of
Securities Warrants.
PLAN OF DISTRIBUTION
We may sell the offered Securities (i) through underwriters or dealers
(including through BancBoston Robertson Stephens Inc., our wholly-owned
subsidiary), (ii) directly to one or more purchasers, or (iii) through agents,
including BancBoston Robertson Stephens. We will identify any such underwriter,
dealer or agent involved in the offer and sale of the Securities in the related
Prospectus Supplement. We will also include in the Prospectus Supplement the
purchase price or prices of the offered Securities, our proceeds from the sale,
any underwriting discounts or commissions and other items constituting
underwriters' compensation.
If underwriters are used in the sale, the offered Securities will be
acquired by the underwriters for their own account and may be resold in one or
more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase such offered Securities will be
subject to certain conditions. The underwriters will be obligated to purchase
all the offered Securities if they purchase any of such offered Securities. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Offered Securities may also be sold directly by us or through agents
designated by us. Unless indicated in the Prospectus Supplement, any such agent
is acting on a best efforts basis for the period of its appointment.
Underwriters, dealers and agents that participate in the distribution of
the offered Securities may be underwriters as defined in the Securities Act of
1933, as amended (the "Act"), and any discounts or commissions received by them
from us and any profit on the resale of the offered Securities by them may be
treated as underwriting discounts and commissions under the Act.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Act, or to contribute with respect to payments which the underwriters,
dealers or agents may be required to make.
BancBoston Robertson Stephens is our wholly-owned subsidiary.
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 which is listed on the NYSE and the BSE. Any shares
of Common Stock sold pursuant to a Prospectus Supplement will be listed on the
NYSE and the BSE, subject to official notice of issuance. We may elect to list
any other securities on an exchange, but we are not obligated to do so.
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Any underwriter may engage in over-allotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Over-allotment involves sales in excess of the offering
size, which creates a short position. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do not exceed
a specified maximum. Short covering transactions involve purchases of the
Securities in the open market after the distribution is completed to cover
short positions. Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the Securities originally sold by the dealer are
purchased in a covering transaction to cover short positions. Those activities
may cause the price of the Securities to be higher than it would otherwise be.
If commenced, the underwriters may discontinue those activities at any time.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our subsidiaries in the ordinary course of their
business. In connection with any particular distribution of Securities, we may
enter into swaps or other hedging transactions with, or arranged by, an
underwriter, dealer or agent participating in such distribution or one of their
affiliates. The underwriter, dealer, agent or affiliate may receive
compensation, trading gain or other benefits from such transaction.
LEGAL OPINIONS
Gary A. Spiess, who is our General Counsel and Clerk, will give an
opinion on the validity of the Securities that we offer under this Prospectus.
Brown & Wood LLP, New York, New York will pass upon certain legal matters
relating to the offered Securities for the underwriters. Brown & Wood LLP will
rely as to all matters of Massachusetts law on the opinion of Mr. Spiess. As of
December 31, 1998, Mr. Spiess had a direct or indirect interest in 90,823
shares of our Common Stock and had options to purchase an additional 96,264
shares, of which options to purchase 64,027 shares will be exercisable within
60 days after December 31, 1998.
EXPERTS
PricewaterhouseCoopers LLP, independent accountants, audited our
financial statements for the fiscal year ended December 31, 1997 incorporated
by reference into this Prospectus and elsewhere into the registration
statement. The financial statements contained in and incorporated by reference
into our Annual Report on Form 10-K for the fiscal year ended December 31, 1997
have been incorporated herein by reference in reliance upon the report set
forth therein of, and upon the authority of, PricewaterhouseCoopers LLP as
experts in accounting and auditing. The report of PricewaterhouseCoopers LLP
contained in our 1997 Annual Report on Form 10-K includes an explanatory
paragraph related to the restatement of our 1995 consolidated financial
statements to retroactively reflect the acquisition of BayBanks, Inc., which we
completed in July 1996 and which we accounted for as a pooling of interests.
Any audited financial statements and schedules that we incorporate or
that are deemed to be incorporated by reference into this Prospectus that are
the subject of a report by independent accountants will be so incorporated by
reference in reliance upon such reports and upon the authority of such firms as
experts in accounting and auditing to the extent covered by consents of these
accountants filed with the SEC.
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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............................................. $ 337,770
NASD fee......................................................... 30,500
Rating agency fees............................................... 300,000
Printing and engraving expenses.................................. 30,000
Accountants' fees and expenses................................... 300,000
Trustees' fees and expenses...................................... 20,000
Listing fees..................................................... 30,000
Miscellaneous.................................................... 1,730
----------
Total........................................................ $1,050,000
==========
</TABLE>
All the above amounts except the SEC registration fee and NASD fee are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the Massachusetts General Laws authorizes a
corporation to indemnify any director, officer, employee or other agent of the
corporation to whatever extent specified in or authorized by (i) the articles
of organization, (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of stock entitled to vote on
the election of directors.
The Registrant's By-laws provide indemnity to the Registrant's Directors and
Officers in such capacity or as directors or officers of a wholly-owned
subsidiary of the Registrant for liability resulting from judgments, fines,
expenses or settlement amounts incurred in connection with any action,
including an action by or in the right of the Registrant, brought against such
person in such capacity. Under Massachusetts law and the By-laws, no
indemnification may be provided for any person with respect to any matter as to
which he or she shall have been adjudicated in any proceeding not to have acted
in good faith in the reasonable belief that his or her action was in the best
interest of the Registrant. The By-laws also provide that, with respect to any
matter disposed of by a compromise payment by such Director or Officer pursuant
to a consent decree or otherwise, no indemnification shall be provided unless
such compromise shall be ordered by a court or shall be approved as being in
the best interest of the Registrant, after notice that it involves such
indemnification: (a) by a disinterested majority of the Directors then in
office or (b) by a majority of the disinterested Directors then in office,
provided that there has been obtained an opinion in writing of independent
counsel to the effect that such person appears to have acted in good faith in
the reasonable belief that his or her action was in the best interests of the
Registrant or (c) by the holders of a majority of the outstanding stock at the
time entitled to vote for Directors, voting as a single class, exclusive of any
stock owned by any interested Director or officer. Under Massachusetts law, a
court may uphold indemnification in connection with a suit in which there is a
recovery by or in the right of a corporation.
The By-laws also provide for indemnification for all other directors of the
Registrant's wholly-owned subsidiaries, and for all other officers of such
wholly-owned subsidiaries to the extent authorized by the Board of Directors,
on the same statutory standard set forth in the preceding paragraph. Where such
an officer is wholly successful in defending the claim, he or she shall be
entitled to indemnification without further authorization of the Board.
Directors and officers of other subsidiaries and joint ventures and employees
and agents of the Registrant and any subsidiaries or joint ventures may be
indemnified as determined by the Board from time to time.
II-1
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ITEM. 16. EXHIBITS.
<TABLE>
<C> <S>
(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, the description of the Rights, and the Renewed Rights
Agreement dated as of December 17, 1998, 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), Exhibit 4(g) to the Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996 and Exhibit
4 to the Corporation's Current Report on Form 8-K dated December 17,
1998. (File No. 1-6522).
(5) --Opinion of Gary A. Spiess, Esq.*
(12)(a) --Computation of the Corporation's Consolidated Ratio of Earnings to
Fixed Charges (excluding interest on deposits) incorporated herein by
reference to Exhibit 12(a) to the Corporation's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998.*
(12)(b) --Computation of the Corporation's Consolidated Ratio of Earnings to
Fixed Charges (including interest on deposits) incorporated herein by
reference to Exhibit 12(b) to the Corporation's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998.*
(12)(c) --Computation of the Corporation's Consolidated Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividend Requirements
(excluding interest on deposits) incorporated herein by reference to
Exhibit 12(c) to the Corporation's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1998.*
(12)(d) --Computation of the Corporation's Consolidated Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividend Requirements
(including interest on deposits) incorporated herein by reference to
Exhibit 12(d) to the Corporation's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1998.*
(23)(a) --Consent of PricewaterhouseCoopers LLP
(23)(b) --Consent of Gary A. Spiess, Esq. (included in Exhibit 5).*
(24) --Power of Attorney of certain officers and directors.*
(25) --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Norwest, as Trustee.*
</TABLE>
- --------
* Previously filed.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes: (1) To file, during any period in
which offers or sales are being made, a post-effective amendment to this
registration statement (i) to include any Prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the Prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the 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 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
Securities offered therein, and the offering of such Securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the Securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that: (1) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of Prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of Prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of
the time it was declared effective; and (2) for the purpose of determining any
liability under the Securities Act of 1933, each post-effective amendment that
contains a form of Prospectus shall be deemed to be a new registration
statement relating to the Securities offered therein, and the offering of such
Securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Pre-effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston, and Commonwealth
of Massachusetts, on the 25th day of January, 1999.
BANKBOSTON CORPORATION
/s/ GARY A. SPIESS
By: _________________________________
(Gary A. Spiess)
(Executive Vice President, General
Counsel and Clerk)
Pursuant to the requirements of the Securities Act of 1933, this Pre-effective
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
CHARLES K. GIFFORD* Chairman and Chief January 25, 1999
______________________________________ Executive Officer
(Charles K. Gifford) (Chief Executive Officer)
HENRIQUE DE CAMPOS MEIRELLES* President and Chief January 25, 1999
______________________________________ Operating Officer and
(Henrique de Campos Meirelles) Director
SUSANNAH M. SWIHART* Vice Chairman, Chief January 25, 1999
______________________________________ Financial Officer and
(Susannah M. Swihart) Treasurer
(Chief Financial Officer)
ROBERT T. JEFFERSON* Comptroller January 25, 1999
______________________________________ (Chief Accounting
(Robert T. Jefferson) Officer)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
WAYNE A. BUDD* Director January 25, 1999
______________________________________
(Wayne A. Budd)
WILLIAM F. CONNELL* Director January 25, 1999
______________________________________
(William F. Connell)
GARY L. COUNTRYMAN* Director January 25, 1999
______________________________________
(Gary L. Countryman)
WILLIAM M. CROZIER, JR.* Director January 25, 1999
______________________________________
(William M. Crozier, Jr.)
ALICE F. EMERSON* Director January 25, 1999
______________________________________
(Alice F. Emerson)
THOMAS J. MAY* Director January 25, 1999
______________________________________
(Thomas J. May)
DONALD F. MCHENRY* Director January 25, 1999
______________________________________
(Donald F. McHenry)
PAUL C. O'BRIEN* Director January 25, 1999
______________________________________
(Paul C. O'Brien)
THOMAS R. PIPER* Director January 25, 1999
______________________________________
(Thomas R. Piper)
FRANCENE S. RODGERS* Director January 25, 1999
______________________________________
(Francene S. Rodgers)
JOHN W. ROWE* Director January 25, 1999
______________________________________
(John W. Rowe)
GLEN P. STREHLE* Director January 25, 1999
______________________________________
(Glen P. Strehle)
WILLIAM C. VAN FAASEN* Director January 25, 1999
______________________________________
(William C. Van Faasen)
THOMAS B. WHEELER* Director January 25, 1999
______________________________________
(Thomas B. Wheeler)
ALFRED M. ZEIEN* Director January 25, 1999
______________________________________
(Alfred M. Zeien)
/s/ GARY A. SPIESS
*By: _________________________________
(Gary A. Spiess)
(Attorney in Fact)
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
(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, the description of the Rights, and the Renewed Rights
Agreement dated as of December 17, 1998, 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), Exhibit 4(g) to the Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996 and Exhibit
4 to the Corporation's Current Report on Form 8-K dated December 17,
1998. (File No. 1-6522).
(5) --Opinion of Gary A. Spiess, Esq.*
(12)(a) --Computation of the Corporation's Consolidated Ratio of Earnings to
Fixed Charges (excluding interest on deposits) incorporated herein by
reference to Exhibit 12(a) to the Corporation's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998.*
(12)(b) --Computation of the Corporation's Consolidated Ratio of Earnings to
Fixed Charges (including interest on deposits) incorporated herein by
reference to Exhibit 12(b) to the Corporation's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998.*
(12)(c) --Computation of the Corporation's Consolidated Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividend Requirements
(excluding interest on deposits) incorporated herein by reference to
Exhibit 12(c) to the Corporation's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1998.*
(12)(d) --Computation of the Corporation's Consolidated Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividend Requirements
(including interest on deposits) incorporated herein by reference to
Exhibit 12(d) to the Corporation's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1998.*
(23)(a) --Consent of PricewaterhouseCoopers LLP
(23)(b) --Consent of Gary A. Spiess, Esq. (included in Exhibit 5).*
(24) --Power of Attorney of certain officers and directors.*
(25) --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Norwest, as Trustee.*
</TABLE>
- --------
* Previously filed.
<PAGE>
EXHIBIT (23) (a)
CONSENT OF INDEPENDENT ACCOUNTANTS
To The Board of Directors
BankBoston Corporation
We consent to the incorporation by reference, in this Pre-Effective Amendment
No. 1 to Form S-3 registration statement of BankBoston Corporation of our report
dated January 15, 1998 on our audits of the consolidated financial statements of
BankBoston Corporation and Subsidiaries as of December 31, 1997 and 1996, and
for each of the years in the three-year period ended December 31, 1997 included
in the Corporation's 1997 Annual Report to Stockholders and in Exhibit 13 to the
Corporation's 1997 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. for the year ended
December 31, 1995, prior to the restatement for the 1996 pooling of interests,
included in the 1995 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
statements of income, changes in stockholders' equity and cash flows for the
year ended December 31, 1995, 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.
Boston, Massachusetts
January 22, 1999
