<PAGE> 1
Registration No. 33-----
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BOATMEN'S BANCSHARES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Missouri 43-0672260
- ------------------------------- -------------------------------
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
One Boatmen's Plaza, 800 Market Street, St. Louis, Missouri 63101 (314) 466-6000
- --------------------------------------------------------------------------------
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
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PHILIP N. McCARTY
Senior Vice President and Secretary
Boatmen's Bancshares, Inc.
One Boatmen's Plaza, 800 Market Street
St. Louis, Missouri 63101
(314) 466-7720
-----------------------------------
(Name, Address, Including Zip Code,
and Telephone Number, Including
Area Code, of Agent For Service)
Copies to:
LARRY L. DESKINS, ESQ.
Lewis, Rice & Fingersh
500 North Broadway
St. Louis, Missouri 63102
(314) 444-7600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE
SECURITIES TO THE PUBLIC: AS SOON AS PRACTICABLE 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/
<PAGE> 2
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of each class of Amount to be offering price per aggregate offering registration
securities to be registered registered Unit(1) price fee
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<S> <C> <C> <C> <C>
Debt Securities (2)
Preferred Stock, no par (3)
Depositary Shares (4) (5) (5) (5)
Common Stock, $1.00 par (6)
Warrants (7)
TOTAL (8) $300,000,000 100% $300,000,000 $103,448.28
=========================================================================================================
</TABLE>
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE
PROSPECTUS INCLUDED IN THIS REGISTRATION STATEMENT (WHICH
PROSPECTUS RELATES TO SECURITIES OF THE REGISTRANT HAVING A
PROPOSED MAXIMUM AGGREGATE OFFERING PRICE OF $500,000,000 AS OF THE
DATE OF THE FILING OF THIS REGISTRATION STATEMENT) IS A COMBINED
PROSPECTUS AND ALSO RELATES TO REGISTRATION STATEMENT NO. 33-48530
PREVIOUSLY FILED BY THE REGISTRANT AND DECLARED EFFECTIVE ON JUNE
29, 1992.
(1) Estimated solely for purposes of calculating the registration
fee in accordance with Rule 457(o).
(2) Subject to note (8) below, there are being registered
hereunder an indeterminate principal amount of Debt
Securities. If any Debt Securities are being issued at an
original issue discount, then the offering price shall be in
such greater principal amount as shall result in an aggregate
initial offering price not to exceed $500,000,000, less the
dollar amount of any securities previously issued hereunder.
(3) Subject to note (8) below, there are being registered
hereunder an indeterminate number of shares of Preferred Stock
as may be sold, from time to time, by the Registrant.
(4) Subject to note (8) below, there are being registered
hereunder an indeterminate number of Depositary Shares to be
evidenced by depositary receipts issued pursuant to a deposit
agreement. In the event the Registrant elects to offer to the
public fractional interests in shares of Preferred Stock
registered hereunder, depositary receipts will be distributed
to those persons purchasing such fractional interests, and the
shares of Preferred Stock will be issued to the depositary
under the deposit agreement.
(5) Not applicable pursuant to Form S-3 General Instruction II.D.
(6) Subject to note (8) below, there are being registered
hereunder an indeterminate number of shares of Common Stock as
may be sold, from time to time, by the Registrant. There are
also being registered hereunder an indeterminate number of
shares of Common Stock as shall be issuable upon conversion or
redemption of Preferred Stock or Debt Securities registered
hereby.
(7) Subject to note (8) below, there are being registered
hereunder an indeterminate amount and number of Warrants,
representing rights to purchase Debt Securities, Preferred
Stock, Depositary Shares or Common Stock registered hereby.
(8) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this
Registration Statement exceed $500,000,000. Any securities
registered hereunder may be sold separately or as units with
other securities registered hereunder.
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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<PAGE> 3
PROSPECTUS SUBJECT TO COMPLETION, DATED APRIL 14, 1994
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
------------------------------------
Boatmen's Bancshares, Inc. ("Boatmen's") may offer from time
to time (i) unsecured debt securities ("Debt Securities")
consisting of debentures, notes, or other unsecured evidences of
indebtedness, in one or more series, (ii) shares of preferred
stock, no par value ("Preferred Stock"), in one or more series,
(iii) depositary shares ("Depositary Shares") evidenced by
depositary receipts and evidencing fractional interests in shares
of Preferred Stock, (iv) shares of common stock, par value $1.00
per share ("Common Stock"), or (v) warrants ("Warrants") to
purchase Debt Securities, Preferred Stock, Depositary Shares,
Common Stock or some combination thereof, (the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants are
collectively referred to as "Securities"), or any combination of
the foregoing, at an aggregate initial offering price not to exceed
$500,000,000, at prices and on terms to be determined at or prior
to the time of sale.
Specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in an accompanying
Prospectus Supplement ("Prospectus Supplement"), together with the
terms of the offering of the Securities and the initial price and
the net proceeds to Boatmen's from the sale thereof. The
Prospectus Supplement will set forth with regard to the particular
Securities, without limitation, the following: (i) in the case of
Debt Securities, the specific designation, aggregate principal
amount, ranking as senior debt or subordinated debt, authorized
denomination, maturity, rate or method of calculation of interest
and dates for payment thereof, any exchangeability, conversion,
redemption, prepayment or sinking fund provisions, the currency or
currencies or currency unit or currency units in which principal,
premium, if any, or interest, if any, is payable, (ii) in the case
of Preferred Stock, the designation, number of shares, liquidation
preference per share, initial public offering price, dividend rate
(or method of calculation thereof), dates on which dividends shall
be payable and dates from which dividends shall accrue, any
redemption or sinking fund provisions, any conversion or exchange
rights, (iii) in the case of Depositary Shares, a description of
the Preferred Stock, and fractional interests therein, represented
by such Depositary Shares, (iv) in the case of Common Stock, the
number of shares of Common Stock and the terms of the offering and
sale thereof, and (v) in the case of Warrants, the number and terms
thereof, the designation and the number of securities issuable upon
their exercise, the exercise price, the terms of the offering and
sale thereof and, where applicable, the duration and detachability
thereof.
Boatmen's may sell the Securities directly, through agents
designated from time to time or through underwriters or dealers.
If any agents of Boatmen's or any underwriters or dealers are
involved in the sale of the Securities, the names of such agents,
underwriters or dealers and any applicable commissions and
discounts will be set forth in the Prospectus Supplement.
--------------------------
<PAGE> 4
THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS OR DEPOSIT ACCOUNTS, BUT
ARE DEBT AND EQUITY INTERESTS IN BOATMEN'S BANCSHARES, INC., AND
ARE NOT INSURED BY THE SAVINGS ASSOCIATION INSURANCE FUND OR THE
BANK INSURANCE FUND OF THE FEDERAL DEPOSIT INSURANCE CORPORATION
OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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April ---, 1994
<PAGE> 5
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION
WITH THE OFFERING DESCRIBED HEREIN AND ANY SUCH INFORMATION OR
REPRESENTATION, IF GIVEN OR MADE, MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY BOATMEN'S. THIS PROSPECTUS DOES NOT CONSTITUTE
A SOLICITATION OR AN OFFERING OF ANY SECURITIES, OTHER THAN THE
REGISTERED SECURITIES TO WHICH IT RELATES, IN ANY JURISDICTION OR
TO ANY PERSON TO WHOM IT WOULD BE UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS
AT ANY TIME DOES NOT IMPLY THAT ANY INFORMATION HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
Boatmen's is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports, proxy statements and
other information with the Securities and Exchange Commission (the
"S.E.C."). The reports, proxy statements and other information can
be inspected and copied at the public reference facilities of the
S.E.C., Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the regional offices of the S.E.C. located at 7 World Trade
Center, New York, New York 10048, and Suite 1400, Northwestern Atrium
Center, 500 West Madison Street, Chicago, Illinois 60661, and copies
of such materials can be obtained from the public reference section of
the S.E.C. at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, reports, proxy statements and other
information concerning Boatmen's may be inspected at the offices of
the National Association of Securities Dealers, Inc., 1735 K Street,
N.W., Washington, D.C. 20006.
Boatmen's has filed with the S.E.C. a Registration Statement
on Form S-3 (together with any amendments thereto, the
"Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities to
be issued as described herein. This Prospectus does not contain
all the information set forth in the Registration Statement and the
exhibits thereto. Such additional information may be obtained from
the S.E.C.'s principal office in Washington, D.C.. Statements
contained in this Prospectus or in any document incorporated in
this Prospectus by reference as to the contents of any contract or
other document referred to herein or therein are not necessarily
complete, and in each instance where reference is made to the copy
of such contract or other document filed as an exhibit to the
Registration Statement or such other document, each such statement
is qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the S.E.C. by Boatmen's
(File No. 1-3750) pursuant to the Exchange Act are incorporated by
reference in this Prospectus:
1. Boatmen's Annual Report on Form 10-K for the year ended
December 31, 1993; and
2. The description of the common stock of Boatmen's
contained in Boatmen's Registration Statement on Form 8-A
under the Exchange Act, as amended under cover of Form 8
dated July 15, 1988, and the description of the preferred
share purchase rights contained in Boatmen's Registration
Statement on Form 8-A under the Exchange Act, filed
August 14, 1990.
<PAGE> 6
All documents and reports filed by Boatmen's pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Prospectus shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the dates
of filing of such documents or reports. Any statement contained in
a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or
in any other subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS RELATING TO BOATMEN'S
BY REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH.
THESE DOCUMENTS (EXCLUDING UNINCORPORATED EXHIBITS) ARE AVAILABLE
WITHOUT CHARGE TO ANY PERSON, INCLUDING ANY BENEFICIAL OWNER, TO
WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST TO
KEVIN R. STITT, DIRECTOR OF INVESTOR RELATIONS, BOATMEN'S
BANCSHARES, INC., ONE BOATMEN'S PLAZA, 800 MARKET STREET,
ST. LOUIS, MISSOURI 63101 (TELEPHONE NUMBER (314) 466-7662).
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-
ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICES OF THE SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
<PAGE> 7
BOATMEN'S BANCSHARES, INC.
Boatmen's was incorporated under the laws of the State of
Missouri in June, 1946 and was known as General Bancshares
Corporation until the time of its merger with Boatmen's Bancshares,
Inc. on March 29, 1986. Boatmen's principal office is located in St.
Louis, Missouri where its largest subsidiary, The Boatmen's National
Bank of St. Louis, is located. Boatmen's directly owns substantially
all of the capital stock of 49 subsidiary banks, a trust company, a
mortgage banking company, a credit life insurance company, an
insurance agency and a credit card bank. The subsidiary banks
operate from approximately 425 banking offices and 350 off-site
automated teller machine locations in Missouri, New Mexico, Oklahoma,
Iowa, Texas, Illinois, Arkansas, Tennessee and Kansas.
The business of Boatmen's consists primarily of the ownership,
supervision and control of its subsidiaries. Boatmen's provides its
subsidiaries with advice, counsel and specialized services in various
fields of financial and banking policy and operations. Boatmen's
also engages in negotiations designed to lead to the acquisition of
other banks and closely related businesses.
Based on total assets as of December 31, 1993, Boatmen's was the
largest bank holding company headquartered in the State of Missouri
and among the 30 largest bank holding companies in the United States.
There are numerous bank holding companies and groupings of banks
located throughout Boatmen's markets which offer substantial
competition in the acquisition and operation of banks and non-bank
financial institutions. Boatmen's subsidiaries encounter substantial
competition in all of their banking and related activities, and its
banking subsidiaries face increasing competition from various non-
banking financial institutions that are not subject to the same
geographic and other regulatory restraints applicable to banks.
The principal executive offices of Boatmen's are at One
Boatmen's Plaza, 800 Market Street, St. Louis, Missouri 63101
(telephone number (314) 466-6000).
2
<PAGE> 8
CERTAIN REGULATORY CONSIDERATIONS
Boatmen's is a legal entity separate and distinct from its
subsidiary banks and other subsidiaries. The principal source of
Boatmen's cash revenue is dividends and fees paid to Boatmen's by its
subsidiaries. The ability of a subsidiary bank to pay dividends to
Boatmen's is subject to various state and federal regulatory
limitations. The subsidiary banks are also subject to certain
restrictions imposed by federal law on any extensions of credit to
Boatmen's and, with certain exceptions, other affiliates, on
investments in stock and other securities thereof and on the taking
of such securities as collateral for loans.
USE OF PROCEEDS
Unless otherwise specified in an applicable Prospectus
Supplement, the net proceeds to be received by Boatmen's from the
sale of the Securities will be added to the general funds of
Boatmen's and will be available for general corporate purposes,
including working capital needs and investments in or advances to
existing or future subsidiaries, and possible future acquisitions.
Any specific allocations of the proceeds to a particular purpose that
has been made at the date of any Prospectus Supplement will be
described therein.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
<TABLE>
The following are the consolidated ratios of earnings to fixed
charges, and earnings to combined fixed charges and preferred stock
dividends, for each of the years in the five year period ended
December 31, 1993:
<CAPTION>
YEAR ENDED DECEMBER 31,
1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C>
EARNINGS TO FIXED CHARGES:
Excluding Interest on Deposits........... 5.06 3.70 2.44 1.77 1.88
Including Interest on Deposits........... 1.72 1.43 1.23 1.17 1.19
EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS:
Excluding Interest on Deposits........... 5.05 3.70 2.44 1.77 1.85
Including Interest on Deposits........... 1.72 1.43 1.23 1.17 1.19
</TABLE>
For purposes of computing these ratios, earnings represent pretax
income before fixed charges. Fixed charges, including interest on
deposits, include all interest expense, one-third of net rental
expense, which approximates the interest component of such expense,
and amortization of debt expense. Fixed charges, excluding interest
on deposits, include interest expense (other than on deposits), one-
third of net rental expense, which approximates the interest
component of such expense, and amortization of debt expense.
Preferred stock dividends have been adjusted to a pretax basis using
Boatmen's effective tax rate.
3
<PAGE> 9
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which
any Prospectus Supplement may relate ("Offered Debt Securities").
The particular terms of the Offered Debt Securities and the extent
to which such general provisions may apply will be described in a
Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities will be general unsecured obligations of
Boatmen's and will constitute either senior debt securities or
subordinated debt securities. In the case of Debt Securities that
will be senior debt securities ("Senior Debt Securities"), such
Securities will be issued under an Indenture (the "Senior Indenture")
to be executed between Boatmen's and Chemical Bank, as trustee under
the Senior Indenture. In the case of Debt Securities that will be
subordinated debt securities ("Subordinated Debt Securities"), the
Debt Securities will be issued under the Indenture dated as of
October 2, 1989, as amended (the "Subordinated Indenture") between
Boatmen's and Chemical Bank (f/k/a Manufacturers Hanover Trust
Company), as trustee under the Subordinated Indenture. The Senior
Indenture and the Subordinated Indenture are sometimes hereinafter
referred to herein individually as an "Indenture" and collectively
as the "Indentures." Chemical Bank, as trustee under the Indentures
(and any successor thereto under each Indenture), is referred to
herein as the "Trustee." The statements under this caption relating
to the Debt Securities and the Indentures are summaries only and do
not purport to be complete. Such summaries make use of terms defined
in the Indentures. Wherever such terms are used herein or particular
provisions of the Indentures are referred to, such terms or
provisions, as the case may be, are incorporated by reference as part
of the statements made herein, and such statements are qualified in
their entirety by such reference. Unless otherwise defined herein,
all capitalized terms shall have the definitions set forth in the
Indentures.
Reference is made to the Prospectus Supplement for the following
terms of the Offered Debt Securities: (i) the title and aggregate
principal amount of the Offered Debt Securities, (ii) the date or
dates on which the Offered Debt Securities will mature, (iii) the
rate or rates (which may be fixed or variable) per annum, if any, at
which the Offered Debt Securities will bear interest or the method
of determining such rate or rates, (iv) the date or dates from which
such interest, if any, will accrue and the date or dates at which
such interest, if any, will be payable, (v) the terms for redemption
or early payment, if any, including any mandatory or optional sinking
fund or analogous provision, (vi) the terms for conversion or
exchange, if any, of the Offered Debt Securities, (vii) the
classification of Senior Debt Securities or Subordinated Debt
Securities, (viii) whether such Offered Debt Securities will be
issued in the form of one or more global securities, (ix) if other
than U.S. dollars, the currency, currencies or currency unit or units
in which such Offered Debt Securities will be denominated and in
which the principal of, and premium and interest, if any, on such
Offered Debt Securities will be payable, (x) whether, and the terms
and conditions on which, Boatmen's or a Holder may elect that, or the
other circumstances under which, payment of principal of, or premium
or interest, if any, on such Offered Debt Securities is to be made
in a currency or currencies or currency unit or units other than that
in which such Offered Debt Securities are denominated, and (xi) any
other specific terms of the Offered Debt Securities. Reference is
also made to the Prospectus Supplement for information with respect
to any additional covenants that may be included in the terms of the
Offered Debt Securities.
4
<PAGE> 10
PROVISIONS APPLICABLE TO BOTH SENIOR
AND SUBORDINATED DEBT SECURITIES
GENERAL
The Indentures do not limit the aggregate principal amount of
Debt Securities which can be issued thereunder and provide that Debt
Securities may be issued from time to time thereunder in one or more
series, each in an aggregate principal amount authorized by Boatmen's
prior to issuance. The Indentures do not limit the amount of other
unsecured indebtedness or securities which may be issued by
Boatmen's. Unless otherwise indicated in a Prospectus Supplement,
the Debt Securities will not benefit from any covenant or other
provision that would afford Holders of such Debt Securities special
protection in the event of a highly leveraged transaction involving
Boatmen's, except for any such protection provided by the provisions
of the Senior Indenture described below under "Provisions Applicable
Solely to Senior Debt Securities -- Limitation on Liens."
Boatmen's currently conducts substantially all its operations
through subsidiaries, and the holders of Debt Securities will have
a junior position to any creditors of Boatmen's subsidiaries.
Offered Debt Securities may be sold at a discount (which may be
substantial) below their stated principal amount bearing no interest
or interest at a rate which at the time of issuance is below market
rates. Any material United States federal income tax consequences
and other special considerations applicable thereto will be described
in the Prospectus Supplement relating to any such Offered Debt
Securities. If any of the Offered Debt Securities are sold for any
foreign currency or currency unit or if the principal of, or premium
or interest, if any, on any of the Offered Debt Securities is payable
in any foreign currency or currency unit, the restrictions,
elections, tax consequences, specific terms and other information
with respect to such Offered Debt Securities and such foreign
currency or currency unit will be set forth in the Prospectus
Supplement relating thereto. No service charge will be made for any
registration of transfer or exchange of the Debt Securities, but
Boatmen's may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
EVENTS OF DEFAULT
Unless otherwise provided with respect to any series of Debt
Securities, the following are Events of Default under each Indenture
with respect to the Debt Securities of such series issued under such
Indenture: (a) failure to pay principal of (or premium, if any, on)
any Debt Security of such series when due, (b) failure to pay any
interest on any Debt Security of such series when due, continued for
30 days, (c) failure to deposit any mandatory sinking fund payment,
when and as due, in respect of the Debt Securities of such series,
(d) failure to perform any other covenant of Boatmen's in the
applicable Indenture (other than a covenant included in the
applicable Indenture for the benefit of a series of Debt Securities
other than such series), continued for 90 days after written notice
as provided in the applicable Indenture, (e) certain events of
bankruptcy, insolvency or reorganization, and (f) any other Event of
Default as may be specified with respect to Debt Securities of such
series. If an Event of Default with respect to any outstanding
series of Debt Securities occurs and is continuing, either the
Trustee or the Holders of at least 25% in principal amount of the
outstanding Debt Securities of such series may declare the principal
amount of all the Debt Securities of the applicable series (or if the
Debt Securities of that series are original issue discount notes,
such portion of the principal amount as may be specified by the terms
of that series) to be due and payable immediately. At any time after
a declaration of acceleration has been made, but before a judgment
has been obtained, the Holders of a majority in principal amount of
the outstanding Debt Securities of such series may, under certain
circumstances, rescind and annul such acceleration. Depending on the
5
<PAGE> 11
terms of other indebtedness of Boatmen's outstanding from time to
time, an Event of Default under an Indenture may give rise to cross
defaults on such other indebtedness of Boatmen's.
Each Indenture provides that the Trustee will, within 90 days
after the occurrence of a default in respect of any series of Debt
Securities, give to the Holders of the Debt Securities of such series
notice of all uncured and unwaived defaults known to it; provided,
however, that except in the case of a default in the payment of the
principal of (or premium, if any) or any interest on, or any sinking
fund installment with respect to, any Debt Securities of such series,
the Trustee will be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the
interest of the Holders of the Debt Securities of such series; and
provided, further, that such notice shall not be given until at least
30 days after the occurrence of a default in the performance, or
breach, of any covenant or warranty of Boatmen's under such Indenture
other than for the payment of the principal of (or premium, if any)
or any interest on, or any sinking fund installment with respect to,
any Debt Securities of such series. For the purpose of this
provision, "default" with respect to Debt Securities of any series
means any event which is, or after notice or lapse of time, or both,
would become, an Event of Default with respect to the Debt Securities
of such series.
The Holders of a majority in principal amount of the outstanding
Debt Securities of any series (or, in certain cases, all outstanding
Debt Securities under the applicable Indenture) have the right,
subject to certain limitations, to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series (or of all outstanding
Debt Securities under the applicable Indenture). Each Indenture
provides that, in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers
under the applicable Indenture and use the same degree of care and
skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Subject to such
provisions, the Trustee will be under no obligation to exercise any
of its rights or powers under either Indenture at the request of any
of the Holders of the Debt Securities unless they shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request.
The Holders of a majority in principal amount of the outstanding
Debt Securities of any series (or, in certain cases, all outstanding
Debt Securities under the applicable Indenture) may on behalf of the
Holders of all Debt Securities of such series (or of all outstanding
Debt Securities under the applicable Indenture) waive any past
default under the applicable Indenture, except a default in the
payment of the principal of (or premium, if any) or interest on any
Debt Security or in respect of a provision which under the applicable
Indenture cannot be modified or amended without the consent of the
Holder of each outstanding Debt Security affected. The Holders of
a majority in principal amount of the outstanding Debt Securities
affected thereby may, on behalf of the Holders of all such Debt
Securities, waive compliance by Boatmen's with certain restrictive
provisions of the Indentures.
Boatmen's is required to furnish to the Trustee annually a
statement as to the performance by Boatmen's of certain of its
obligations under each Indenture and as to any default in such
performance.
MODIFICATION
Modifications and amendments of each Indenture may be made by
Boatmen's and the Trustee with the consent of the Holders of a
majority in principal amount of the outstanding Debt Securities under
the applicable Indenture affected thereby; provided, however, that
no such modification or amendment may,
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without the consent of the
Holder of each outstanding Debt Security affected thereby, (a) change
the stated maturity date of the principal of, or any installment of
interest on, any Debt Security, (b) reduce the principal amount of,
or the premium (if any) or interest on, any Debt Security, (c) change
the place or currency, currencies, or currency unit or units, for
payment of principal of, or premium (if any) or interest on, any Debt
Security, or (d) reduce the percentage in principal amount of
outstanding Debt Securities the consent of whose Holders is required
for modification or amendment of the Indentures or for waiver of
compliance with certain provisions of the Indentures or for waiver
of certain defaults.
Each Indenture provides that Boatmen's and the Trustee may,
without the consent of any Holders of Debt Securities, enter into
supplemental indentures for the purposes of curing ambiguities or
inconsistencies in the applicable Indenture, provided such action to
cure ambiguities or inconsistencies shall not adversely affect the
interests of the Holders of the Debt Securities in any material
respect.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Boatmen's, without the consent of any Holders of outstanding
Debt Securities, may consolidate with or merge into, or convey,
transfer or lease its assets substantially as an entirety to, any
Person, provided that (a) the Person formed by such consolidation or
into which Boatmen's is merged or which acquires or leases the assets
of Boatmen's substantially as an entirety is a corporation,
partnership or trust organized under the laws of any United States
jurisdiction and assumes by supplemental indenture Boatmen's
obligations on the Debt Securities and under the Indentures, (b)
after giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing, and (c)
certain other conditions are met.
DISCHARGE AND DEFEASANCE
Boatmen's may terminate its obligations under each Indenture,
other than its obligation to pay the principal of (and premium, if
any) and interest on the Debt Securities of any series and certain
other obligations, if it (i) irrevocably deposits or causes to be
irrevocably deposited with the Trustee as trust funds money or U.S.
Government Obligations maturing as to principal and interest
sufficient to pay the principal of, any interest on, and any
mandatory sinking funds in respect of, all outstanding Debt
Securities of such series at the stated maturity of such payments or
on any redemption date, and (ii) complies with any additional
conditions specified to be applicable with respect to the defeasance
of Debt Securities of such series.
The terms of any series of Debt Securities may also provide for
legal defeasance pursuant to each Indenture. In such case, if
Boatmen's (i) irrevocably deposits or causes to be irrevocably
deposited money or U.S. Government Obligations as described above,
(ii) makes a request to the Trustee to be discharged from its
obligations on the Debt Securities of such series, and (iii) complies
with any additional conditions specified to be applicable with
respect to legal defeasance of Debt Securities of such series, then
Boatmen's shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Debt Securities of such series
and the obligations of Boatmen's under the applicable Indenture and
the Debt Securities of such series to pay the principal of (and
premium, if any) and interest on the Debt Securities of such series
shall cease, terminate and be completely discharged, and the Holders
thereof shall thereafter be entitled only to payment out of the money
or U.S. Government Obligations deposited with the Trustee as
aforesaid, unless Boatmen's obligations are revived and reinstated
because the Trustee is unable to apply such trust fund by reason of
any legal proceeding, order or judgment.
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"U.S. Government Obligations" is defined in each Indenture as
direct noncallable obligations of, or noncallable obligations the
payment of principal of and interest on which is guaranteed by, the
United States of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States of America
is pledged, or beneficial interests in a trust the corpus of which
consists exclusively of money or such obligations or a combination
thereof.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities are issuable in definitive form as Registered
Debt Securities. Debt Securities are also issuable in global form
("Global Debt Securities"). Debt Securities of any series will be
exchangeable for other Debt Securities of the same series and of a
like aggregate principal amount and tenor of different authorized
denominations.
Debt Securities may be presented for registration of transfer
(with the form of transfer endorsed thereon duly executed), at the
office of the Security Registrar or at the office of any transfer
agent designated by Boatmen's for such purpose with respect to any
series of Debt Securities and referred to in an applicable Prospectus
Supplement, without service charge and upon payment of any taxes and
other governmental charges as described in the applicable Indenture.
Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied
with the documents of title and identity of the Person making the
request. Boatmen's has appointed the Trustee as Security Registrar.
If a Prospectus Supplement refers to any transfer agents (in addition
to the Security Registrar) initially designated by Boatmen's with
respect to any series of Debt Securities, Boatmen's may at any time
rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts.
In the event of any redemption in part, Boatmen's shall not be
required to (i) issue, register the transfer of or exchange Debt
Securities of any series during a period beginning at the opening of
business 15 days prior to the selection of Debt Securities of that
series for redemption and ending on the close of business on the day
of mailing of the relevant notice of redemption, or (ii) register the
transfer of or exchange any Debt Security, or portion thereof, called
for redemption, except the unredeemed portion of any Debt Security
being redeemed in part.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of and any premium and interest on
Debt Securities will be made in the designated currency or currency
unit at the office of such Paying Agent or Paying Agents as Boatmen's
may designate from time to time, except that at the option of
Boatmen's payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear
in the Security Register. Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of
interest on Debt Securities will be made to the Person in whose name
such Debt Security is registered at the close of business on the
Regular Record Date for such interest.
Unless otherwise indicated in an applicable Prospectus
Supplement, the Corporate Trust Office of the Trustee in the Borough
of Manhattan, The City of New York will be designated as a Paying
Agent for Boatmen's for payments with respect to Debt Securities.
Any other Paying Agents designated by Boatmen's for the Debt
Securities will be named in an applicable Prospectus Supplement.
Boatmen's may at any time
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designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in
the office through which any Paying Agent acts.
All moneys paid by Boatmen's to a Paying Agent for the payment
of principal of and any premium or interest on any Debt Security
which remain unclaimed at the end of three years after such
principal, premium or interest shall have become due and payable will
(subject to applicable escheat laws) be repaid to Boatmen's and the
Holder of such Debt Security or any coupon will thereafter look
solely to Boatmen's for payment thereof.
GLOBAL SECURITIES
If any Debt Securities of a series are issuable in global form,
the applicable Prospectus Supplement will describe the circumstances,
if any, under which beneficial owners of interests in any such Global
Debt Securities may exchange such interests for Debt Securities of
such series and of like tenor and principal amount in any authorized
form and denomination. A Person having a beneficial interest in a
Global Debt Security will, except with respect to payment of
principal of and any premium and interest on such Global Debt
Security, be treated as a Holder of such principal amount of
Outstanding Debt Securities represented by such Global Debt Security
as shall be specified in a written statement of the Holder of such
Global Debt Security. Principal of and any premium and interest on
a Global Debt Security will be payable in the manner described in the
applicable Prospectus Supplement.
MEETINGS
The Indentures contain provisions for convening meetings of the
Holders of Debt Securities of a series. A meeting may be called at
any time by the Trustee and also, upon request, by Boatmen's or the
Holders of at least 10% in principal amount of the Outstanding Debt
Securities of such series, in any such case upon notice given as
described under "Provisions Applicable to Both Senior and
Subordinated Debt Securities -- Notices" below. Except for any
consent that must be given by the Holder of each Outstanding Debt
Security affected thereby, as described under "Provisions Applicable
to Both Senior and Subordinated Debt Securities -- Modification"
above, any resolution presented at a meeting or adjourned meeting at
which a quorum is present may be adopted by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series; provided, however, that, except for any
consent that must be given by the Holder of each Outstanding Debt
Security affected thereby, as described under "Provisions Applicable
to Both Senior and Subordinated Debt Securities -- Modification"
above, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
that may be made, given or taken by the Holders of a specified
percentage, which is less than a majority in principal amount of the
Outstanding Debt Securities of a series, may be adopted at a meeting
or adjourned meeting duly reconvened at which a quorum is present by
the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Debt Securities of that series.
Subject to the proviso set forth above, any resolution passed or
decision taken at any meeting of Holders of Debt Securities of any
series duly held in accordance with the Indenture will be binding on
all Holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting,
will be Persons holding or representing a majority in principal
amount of the outstanding Debt Securities of a series.
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NOTICES
Notices to Holders of Debt Securities will be given by mail to
the addresses of such Holders as they appear in the Security
Register.
THE TRUSTEE
Each Indenture contains certain limitations on the right of the
Trustee, as a creditor of Boatmen's, to obtain payment of claims in
certain cases and to realize on certain property received with
respect to any such claims, as security or otherwise. The Trustee
is permitted to engage in other transactions, except that, if it
acquires any conflicting interest (as defined), it must eliminate
such conflict or resign.
Chemical Bank has made and participated in loans to Boatmen's
and its subsidiaries and affiliates from time to time in the ordinary
course of business and at prevailing interest rates under agreements
with commercial bank groups.
PROVISIONS APPLICABLE SOLELY
TO SENIOR DEBT SECURITIES
GENERAL
Senior Debt Securities will be issued under the Senior Indenture
and will rank pari passu with all other unsecured and unsubordinated
debt of Boatmen's.
LIMITATION ON LIENS
The Senior Indenture provides that, so long as any Senior Debt
Securities (which, as defined in the Senior Indenture, would include
all securities issued under the Senior Indenture) are outstanding,
Boatmen's will not, and will not permit any Principal Subsidiary to,
pledge, mortgage, hypothecate or grant a security interest in, or
permit any mortgage, pledge, security interest or other lien upon,
any property or assets owned by Boatmen's or any Principal Subsidiary
to secure any Indebtedness, without making effective provision
whereby outstanding Senior Debt Securities shall be equally and
ratably secured.
Under the Senior Indenture, The Boatmen's National Bank of St.
Louis is currently the only subsidiary which is a Principal
Subsidiary. The Senior Indenture contains no restriction on the
disposition by Boatmen's of the stock of a Principal Subsidiary or
any other Subsidiary. Moreover, the Senior Indenture does not
prohibit Boatmen's or any Principal Subsidiary from doing business
through any existing or new Subsidiary that is not a Principal
Subsidiary and, therefore, not subject to the limitation in, or liens
of, the Senior Indenture or from transferring assets or businesses
to those Subsidiaries.
Under the terms of the Senior Indenture, the above negative
pledge restriction does not apply to (a) any mortgage, pledge,
security interest, lien or encumbrance upon any property or assets
created at the time of the acquisition of such property or assets by
Boatmen's or any Principal Subsidiary or within one year after such
time to secure all or a portion of the purchase price for such
property or assets, (b) any mortgage, pledge, security interest, lien
or encumbrance upon any property or assets existing thereon at the
time of the acquisition thereof by Boatmen's or any Principal
Subsidiary (whether or not the obligations secured thereby are
assumed by Boatmen's or any Subsidiary), (c) any mortgage, pledge,
security interest, lien or encumbrance upon any property or assets,
whenever acquired, of any corporation that becomes a Principal
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Subsidiary after the date of execution of the Senior Indenture,
provided that (i) the instrument creating such mortgage, pledge,
security interest, lien or encumbrance shall be in effect prior to
the time such corporation becomes a Principal Subsidiary and (ii)
such mortgage, pledge, security interest, lien or encumbrance shall
only apply to properties or assets owned by such corporation at the
time it becomes a Principal Subsidiary or thereafter acquired by it
from sources other than Boatmen's or another Principal Subsidiary,
(d) any extension, renewal or refunding of any mortgage, pledge,
security interest, lien or encumbrance described in (a), (b) or (c)
above on substantially the same property or assets theretofore
subject thereto, (e) any mortgage, pledge, security interest, lien,
or encumbrance in favor of Boatmen's or any Wholly Owned Subsidiary,
(f) any mortgage, pledge, security interest, lien or encumbrance
created or assumed by Boatmen's or a Principal Subsidiary in
connection with the issuance of debt securities the interest on which
is excludable from gross income of the Holder of such security
pursuant to the Code for the purpose of financing, in whole or in
part, the acquisition or construction of property or assets to be
used by Boatmen's or a Subsidiary, or (g) any mortgage, pledge,
security interest, lien or encumbrance securing any Indebtedness in
an amount which, together with all other Indebtedness secured by a
mortgage, pledge, security interest, lien or encumbrance that is not
otherwise permitted by the foregoing provisions, does not at the time
of the incurrence of the Indebtedness so secured exceed 5% of
Consolidated Tangible Assets, as shown on a balance sheet as of the
date of the balance sheet contained in Boatmen's most recent periodic
report on Form 10-K or 10-Q filed with the S.E.C. prior to the date
of such incurrence.
The term "Indebtedness," as applied to any Person, is defined
in the Senior Indenture as all indebtedness, whether or not
represented by bonds, debentures, notes or other securities, created
or assumed by such Person for the repayment of money borrowed and
obligations, computed in accordance with generally accepted
accounting principles, as lessee under leases that should be, in
accordance with generally accepted accounting principles, treated as
capital leases. All Indebtedness secured by a lien upon property
owned by Boatmen's or any Subsidiary and upon which Indebtedness such
Person customarily pays interest, although such Person has not
assumed or become liable for the payment of such Indebtedness, shall
be deemed to be Indebtedness of such Person. All Indebtedness of
others guaranteed as to payment of principal by such Person or in
effect guaranteed by such Person through a contingent agreement to
purchase such Indebtedness shall also be deemed to be Indebtedness
of such Person.
"Consolidated Tangible Assets" is defined in the Senior
Indenture as the total amount of assets of Boatmen's and its
Subsidiaries on a consolidated basis, including the equity in
Subsidiaries that are not Wholly-Owned Subsidiaries (less applicable
reserves and other properly deductible items), after deducting
therefrom all goodwill and other like intangible assets.
The Senior Indenture defines the term "Subsidiary" as a
corporation more than 50% of the outstanding voting stock of which
is owned, directly or indirectly, by Boatmen's or by one or more
other Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the election
of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Principal Subsidiary" is defined to include (i) The Boatmen's
National Bank of St. Louis, and (ii) any Subsidiary whose total
assets, as determined from the most recent balance sheet, constitutes
25% or more of the total consolidated assets of Boatmen's as shown
on a balance sheet as of the date of the balance sheet contained in
Boatmen's most recent periodic report on Form 10-K or 10-Q filed with
the S.E.C. prior to the date of such determination.
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PROVISIONS APPLICABLE SOLELY TO
SUBORDINATED DEBT SECURITIES
GENERAL
Subordinated Debt Securities will be issued under the
Subordinated Indenture and will rank pari passu with certain other
subordinated debt of Boatmen's that may be outstanding from time to
time and will rank junior to all Senior Indebtedness of Boatmen's
(including any Senior Debt Securities) that may be outstanding from
time to time.
SUBORDINATION
The Subordinated Debt Securities will be unsecured, subordinated
and junior in right of payment to Senior Indebtedness (as defined
below) of Boatmen's. No payment on account of principal of or
interest on any Subordinated Debt Securities may be made if (i) a
default in any payment with respect to any Senior Indebtedness shall
have occurred and be continuing, or (ii) at the time of payment or
after giving effect thereto, there shall have occurred an event of
default, or an event which with the giving of notice or passage of
time or both would constitute an event of default, with respect to
any Senior Indebtedness permitting the holders thereof to accelerate
the maturity thereof. Upon any payment or distribution of assets of
Boatmen's to creditors resulting from any liquidation, dissolution,
winding up, reorganization or any insolvency proceedings of
Boatmen's, the holders of any Senior Indebtedness will first be
entitled to receive payment in full of all amounts due or to become
due thereon before the holders of Subordinated Debt Securities will
be entitled to receive any payment under the Subordinated Debt
Securities on account of principal of or interest on the Subordinated
Debt Securities. In addition, by reason of such subordination, in
the event of Boatmen's insolvency, holders of Senior Indebtedness may
receive more, ratably, and holders of the Subordinated Debt
Securities may receive less, ratably, than the other creditors of
Boatmen's. Each series of Subordinated Debt Securities will rank
pari passu with all other series of the Subordinated Debt Securities.
"Senior Indebtedness" of Boatmen's means the principal of,
premium, if any, and interest on (a) all indebtedness for money
borrowed, whether outstanding on the date of execution of the
Subordinated Indenture or thereafter created, assumed or incurred
except (i) Boatmen's 6 1/4% Convertible Subordinated Debentures due
2011, (ii) such indebtedness as is by its terms expressly stated to
be not superior in right of payment to the Subordinated Debt
Securities, and (iii) such indebtedness as is by its terms expressly
stated to rank pari passu in right of payment to the Subordinated
Debt Securities, and (b) any deferrals, renewals or extensions of any
such Senior Indebtedness. The aggregate principal amount of Senior
Indebtedness outstanding as of a recent date will be set forth in the
Prospectus Supplement with respect to each series of Subordinated
Debt Securities.
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DESCRIPTION OF BOATMEN'S COMMON STOCK
GENERAL
Boatmen's Restated Articles of Incorporation currently authorize
the issuance of 125 million shares of common stock, par value $1.00
per share, and 10.3 million preferred shares, no par value per share,
of which 35,045 shares are designated "7% Cumulative Redeemable
Preferred Stock, Series B" $100.00 stated value per share (the
"Series B Preferred Stock") and 1,250,000 shares have been designated
"Junior Participating Preferred Stock Series C", stated value $1.00
per share (the "Series C Preferred Stock"). As of April 1, 1994,
approximately 104.6 million shares of Boatmen's Common Stock were
issued and outstanding. The following is a brief description of the
terms of Boatmen's Common Stock.
DIVIDEND RIGHTS
The holders of Boatmen's Common Stock are entitled to share
ratably in dividends when, as and if declared by the Board of
Directors of Boatmen's from funds legally available therefor, after
full cumulative dividends have been paid, or declared and funds
sufficient for the payment thereof set apart, on all shares of
Boatmen's Series B Preferred Stock, and any other class or series of
preferred stock ranking superior as to dividends to Boatmen's Common
Stock. The ability of the subsidiary banks of Boatmen's to pay cash
dividends, which are expected to be Boatmen's principal source of
income, is restricted by applicable banking laws.
VOTING RIGHTS
Each holder of Boatmen's Common Stock has one vote for each
share held on matters presented for consideration by the
shareholders, except that, in the election of directors, such
shareholders have cumulative voting rights which entitle each such
shareholder to the number of votes which equals the number of shares
held by the shareholder multiplied by the number of directors to be
elected. All such cumulative votes may be cast for one candidate for
election as a director or may be distributed among two or more
candidates.
CLASSIFICATION OF BOARD OF DIRECTORS
The Board of Directors of Boatmen's is divided into three
classes, and the directors are elected by classes to three-year
terms, so that approximately one-third of the directors of Boatmen's
are elected at each annual meeting of the shareholders. Although it
promotes stability and continuity of the Board of Directors,
classification of the Board of Directors may have the effect of
decreasing the number of directors that could otherwise be elected
by anyone who obtains a controlling interest in Boatmen's Common
Stock and thereby could impede a change in control of Boatmen's.
Because fewer directors are elected at each annual meeting, such
classification also reduces the effectiveness of cumulative voting
as a means of establishing or increasing minority representation on
the Board of Directors.
PREEMPTIVE RIGHTS
The holders of Boatmen's Common Stock have no preemptive right
to acquire any additional unissued shares or treasury shares of
Boatmen's.
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LIQUIDATION RIGHTS
In the event of liquidation, dissolution or winding up of
Boatmen's, whether voluntary or involuntary, the holders of Boatmen's
Common Stock will be entitled to share ratably in any of its assets
or funds that are available for distribution to its shareholders
after the satisfaction of its liabilities (or after adequate
provision is made therefor) and after preferences on any outstanding
preferred stock.
ASSESSMENT AND REDEMPTION
Shares of Boatmen's Common Stock will be, when issued, fully
paid and non-assessable. Such shares do not have any redemption
provisions.
SHAREHOLDER RIGHTS PLAN
On August 14, 1990, the Board of Directors of Boatmen's declared
a dividend, payable on August 31, 1990 (the "Boatmen's Record Date"),
of one Preferred Share Purchase Right (a "Boatmen's Right") for each
outstanding share of Boatmen's Common Stock. Each Boatmen's Right
entitles the registered holder to purchase from Boatmen's one one-
hundredth of a share of Series C Preferred Stock at a price of
$110.00 per one one-hundredth share (the "Boatmen's Purchase Price"),
subject to adjustment. The description and terms of the Boatmen's
Rights are set forth in a Rights Agreement (the "Boatmen's Rights
Agreement") between Boatmen's and Boatmen's Trust Company as Rights
Agent (the "Rights Agent"), and the following description is
qualified in its entirety by the Boatmen's Rights Agreement.
Until the earlier to occur of (i) ten days following a public
announcement that a person or group of affiliated or associated
persons (a "Boatmen's Acquiring Person") has acquired beneficial
ownership of 20% or more of the outstanding shares of Boatmen's
Common Stock, or (ii) ten business days (or such later date as may
be determined by action of the Board of Directors prior to such time
as any person becomes a Boatmen's Acquiring Person) following the
commencement of, or announcement of an intention to make, a tender
or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 20% or more of such
outstanding shares of Boatmen's Common Stock (the earlier of such
dates being called the "Boatmen's Distribution Date"), the Boatmen's
Rights will be evidenced, with respect to any of the Boatmen's Common
Stock share certificates outstanding as of the Boatmen's Record Date,
by such Boatmen's Common Stock share certificates, with a copy of a
Summary of Rights attached thereto.
The Boatmen's Rights Agreement provides that until the Boatmen's
Distribution Date (or earlier redemption or expiration of the
Boatmen's Rights), the Boatmen's Rights will be transferred only with
shares of Boatmen's Common Stock. New Boatmen's Common Stock share
certificates issued after the Boatmen's Record Date, upon transfer
or new issuance of Boatmen's Common Stock, will contain a notation
incorporating the Boatmen's Rights Agreement by reference, and the
surrender for transfer of any certificates for Boatmen's Common Stock
outstanding as of the Boatmen's Record Date, even without such
notation or a copy of the Summary of Rights being attached thereto,
will also constitute the transfer of the Boatmen's Rights associated
with the Boatmen's Common Stock represented by such certificate. As
soon as practicable following the Boatmen's Distribution Date,
separate certificates evidencing the Boatmen's Rights (the "Boatmen's
Right Certificates") will be mailed to holders of record of Boatmen's
Common Stock as of the close of business on the Boatmen's
Distribution Date and such separate Boatmen's Right Certificates
alone will evidence the Boatmen's Rights.
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The Boatmen's Rights are not exercisable until the Boatmen's
Distribution Date. The Boatmen's Rights will expire on August 14,
2000 (the "Final Expiration Date"), unless the Final Expiration Date
is extended or unless the Boatmen's Rights are earlier redeemed by
Boatmen's, in each case as described below.
The Boatmen's Purchase Price payable, and the number of
preferred shares or other securities or property issuable, upon
exercise of the Boatmen's Rights are subject to adjustment from time
to time upon the occurrence of certain events in order to prevent
dilution. In addition, the number of outstanding Boatmen's Rights
and the number of one one-hundredths of a share of Series C Preferred
Stock issuable upon exercise of each Boatmen's Right are also subject
to adjustment in the event of a stock split of Boatmen's Common Stock
or a stock dividend on Boatmen's Common Stock payable in shares of
Boatmen's Common Stock or subdivisions, consolidations or
combinations of shares of Boatmen's Common Stock occurring, in any
such case, prior to the Boatmen's Distribution Date.
In the event that Boatmen's is acquired in a merger or other
business combination transaction or 50% or more of its consolidated
assets or earning power are sold, proper provision will be made so
that each holder of a Boatmen's Right will thereafter have the right
to receive, upon the exercise thereof at the then current exercise
price of the Boatmen's Right, that number of shares of common stock
of the acquiring company which at the time of such transaction will
have a market value of two times the exercise price of the Boatmen's
Right. In the event that (i) any person or group of affiliated or
associated persons becomes the beneficial owner of 20% or more of the
outstanding shares of Boatmen's Common (unless such person first
acquires 20% or more of the outstanding shares of Boatmen's Common
Stock by a purchase pursuant to a tender offer for all of the
Boatmen's Common Stock for cash, which purchase increases such
person's beneficial ownership to 80% or more of the outstanding
Boatmen's Common Stock), or (ii) during such time as there is a
Boatmen's Acquiring Person, there shall be a reclassification of
securities or a recapitalization or reorganization of Boatmen's or
other transaction or series of transactions involving Boatmen's which
has the effect of increasing by more than 1% the proportionate share
of the outstanding shares of any class of equity securities of
Boatmen's or any of its subsidiaries beneficially owned by the
Boatmen's Acquiring Person, proper provision will be made so that
each holder of a Boatmen's Right, other than Boatmen's Rights
beneficially owned by the Boatmen's Acquiring Person (which will
thereafter be void), will thereafter have the right to receive upon
exercise that number of shares of Boatmen's Common Stock having a
market value of two times the exercise price of the Boatmen's Right.
At any time after the acquisition by a Boatmen's Acquiring
Person of beneficial ownership of 20% or more of the outstanding
shares of Boatmen's Common Stock, and prior to the acquisition by
such Boatmen's Acquiring Person of 50% or more of the outstanding
shares of Boatmen's Common Stock, the Board of Directors of Boatmen's
may exchange the Boatmen's Rights (other than Boatmen's Rights owned
by such person or group which have become void), in whole or in part,
at an exchange ratio of one share of Boatmen's Common Stock per
Boatmen's Right (subject to adjustment).
With certain exceptions, no adjustment in the Boatmen's Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% of the Boatmen's Purchase Price. No
fractional shares of Series C Preferred Stock will be issued (other
than fractions which are integral multiples of one one-hundredth of
a share of Series C Preferred Stock and which may, at the election
of Boatmen's, be evidenced by depositary receipts) and, in lieu
thereof, an adjustment in cash will be made based on the market price
of the shares of Boatmen's Common on the last trading day prior to
the date of exercise.
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At any time prior to the acquisition by a Boatmen's Acquiring
Person of beneficial ownership of 20% or more of the outstanding
shares of Boatmen's Common Stock, the Boatmen's Board of Directors
may redeem the Boatmen's Rights in whole, but not in part, at a price
of $0.01 per Boatmen's Right (the "Boatmen's Redemption Price"). The
redemption of the rights may be made effective at such time, on such
basis, and with such conditions as the Board of Directors of
Boatmen's in its sole discretion may establish.
In addition, if a bidder who does not beneficially own more than
1% of the shares of Boatmen's Common Stock and all other voting
shares of Boatmen's (together the "Voting Shares") (and who has not
within the past year owned in excess of 1% of the Voting Shares and,
at a time he held a greater than 1% stake, disclosed, or caused the
disclosure of, an intention which relates to or would result in the
acquisition or influence of control of Boatmen's) proposes to acquire
all of the Voting Shares for cash at a price which a nationally
recognized investment banker selected by such bidder states in
writing is fair, and such bidder has obtained written financing
commitments (or otherwise has financing) and complies with certain
procedural requirements, then Boatmen's, upon the request of the
bidder, will hold a special shareholders' meeting to vote upon a
resolution requesting the Board of Directors to accept the bidder's
proposal. If a majority of the outstanding shares entitled to vote
upon the proposal vote in favor of such resolution, then for a period
of 60 days after such meeting the Boatmen's Rights will be
automatically redeemed at the Boatmen's Redemption Price immediately
prior to the consummation of any tender offer for all of such shares
at a price per share in cash equal to or greater than the price
offered by such bidder; provided, however, that no redemption will
be permitted or required after the acquisition by any person or group
of affiliated or associated persons of beneficial ownership of 20%
or more of the outstanding shares of Boatmen's Common Stock.
Immediately upon any redemption of the Boatmen's Rights, the right
to exercise the Boatmen's Rights will terminate and the only right
of the holders of Boatmen's Rights will be to receive the Boatmen's
Redemption Price.
The terms of the Boatmen's Rights may be amended by the Board
of Directors of Boatmen's without the consent of the holders of the
Boatmen's Rights, including an amendment to lower certain thresholds
described above to not less than the greater of (i) any percentage
greater than the largest percentage of the outstanding shares of
Boatmen's Common Stock then known to Boatmen's to be beneficially
owned by any person or group of affiliated or associated persons, or
(ii) 10%, except that from and after such time as any person becomes
a Boatmen's Acquiring Person no such amendment may adversely affect
the interests of the holders of the Boatmen's Rights.
Until a Boatmen's Right is exercised, the holder thereof, as
such, will have no rights as a shareholder of Boatmen's, including,
without limitation, the right to vote or to receive dividends.
DESCRIPTION OF BOATMEN'S PREFERRED STOCK
GENERAL
Boatmen's Restated Articles of Incorporation currently
authorize, in addition to the 125 million shares of Boatmen's Common
Stock, 10.3 million preferred shares, no par value per share, of
which 35,045 shares are designated as the Series B Preferred Stock
and 1,250,000 shares are designated the Series C Preferred Stock.
(Hereafter the term "Preferred Stock" shall refer to preferred shares
other than the Series B Preferred Stock and the Series C Preferred
Stock). As of April 1, 1994, 11,421 shares of Series B Preferred
Stock were issued and outstanding, 1,250,000 shares of Series C
Preferred Stock were reserved
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for issuance, but none was outstanding,
and 8,764,955 shares of Preferred Stock were available for issuance
by the Board of Directors of Boatmen's without further shareholder
action.
SERIES B PREFERRED STOCK
Dividend Rights. Holders of shares of Series B Preferred Stock
will be entitled to receive, when, as and if declared by the Board
of Directors, out of any funds legally available for such purpose,
cumulative cash dividends at an annual dividend rate per share of 7%
of the stated value thereof, payable quarterly. Dividends on
Boatmen's Series B Preferred Stock are cumulative and no dividends
can be declared or paid on any shares of Boatmen's Common Stock
unless full cumulative dividends on Boatmen's Series B Preferred
Stock have been paid, or declared and funds sufficient for the
payment thereof set apart.
Liquidation Rights. In the event of the dissolution and
liquidation of Boatmen's, the holders of Boatmen's Series B Preferred
Stock will be entitled to receive, after payment of the full
liquidation preference on shares of any class or series of preferred
stock ranking superior to Boatmen's Series B Preferred Stock (if any
such shares are then outstanding) but before any distribution on
shares of Boatmen's Common Stock, liquidating dividends of $100.00
per share plus accumulated dividends.
Redemption. Shares of Boatmen's Series B Preferred Stock are
redeemable, at the option of the holders thereof, at the redemption
price of $100.00 per share plus accumulated dividends, provided, that
(i) full cumulative dividends have been paid, or declared and funds
sufficient for payment set apart, upon any class or series of
preferred stock ranking superior to Boatmen's Series B Preferred
Stock, and (ii) Boatmen's is not then in default with respect to any
sinking or analogous fund or call for tenders obligation or agreement
for the purchase or any class or series of preferred stock ranking
superior to Boatmen's Series B Preferred Stock.
Voting Rights. Each share of Boatmen's Series B Preferred Stock
has equal voting rights, share for share, with each share of
Boatmen's Common Stock.
Superior Stock. Boatmen's may, without the consent of holders
of Boatmen's Series B Preferred Stock, issue preferred stock with
superior or equal rights or preferences.
SERIES C PREFERRED STOCK
1,250,000 shares of Series C Preferred Stock have been reserved
for issuance upon exercise of the Boatmen's Rights outstanding under
the Boatmen's Rights Agreement. Series C Preferred Stock purchasable
upon exercise of the Boatmen's Rights will not be redeemable. Each
share of Series C Preferred Stock will be entitled to a minimum
preferential quarterly dividend payment of $1.00 per share and will
be entitled to an aggregate dividend of 100 times the dividend
declared on each share of Boatmen's Common Stock. In the event of
liquidation, the holders of the Series C Preferred Stock will be
entitled to a minimum preferential liquidation payment of $100 per
share and will be entitled to an aggregate payment of 100 times the
payment made on each share of Boatmen's Common Stock. Each share of
Series C Preferred Stock will have 100 votes, voting together with
the Boatmen's Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which shares of Boatmen's
Common Stock are exchanged, each share of Series C Preferred Stock
will be entitled to receive 100 times the amount received on each
share of Boatmen's Common Stock.
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<PAGE> 23
PREFERRED STOCK
General. The following description sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be
described in the Prospectus Supplement relating to such series of the
Preferred Stock. If so indicated in the Prospectus Supplement, the
terms of any such series may differ from the terms set forth below.
The description of certain provisions of the Preferred Stock set
forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference
to the Certificate of Designation relating to each series of the
Preferred Stock, which will be filed with the S.E.C. on or prior to
the time of the sale of such Preferred Stock.
The Preferred Stock shall have the dividend, liquidation,
redemption, voting and conversion rights set forth below unless
otherwise provided in the Prospectus Supplement relating to a
particular series of the Preferred Stock. Reference is made to the
Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms including: (i) the
title, stated value and liquidation preference of such Preferred
Stock and the number of shares offered, (ii) the initial public
offering price at which such Preferred Stock will be issued, (iii)
the dividend rate or rates (or method of calculation), the dividend
periods, the dates on which dividends shall be payable and whether
such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to
cumulate, (iv) any redemption or sinking fund provisions, (v) any
conversion provisions, (vi) voting rights, (vii) whether Boatmen's
has elected to offer Depositary Shares as described below under
"Description of Depositary Shares", and (viii) any additional
dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions. The Preferred
Stock will, when issued, be fully paid and nonassessable. Unless
otherwise specified in the Prospectus Supplement relating to a
particular series of the Preferred Stock, each series of the
Preferred Stock will rank on a parity in all respects with the
outstanding shares of the Series B Preferred Stock, the Series C
Preferred Stock, and each other series of the Preferred Stock. The
Preferred Stock will have no preemptive rights to subscribe for any
additional securities which may be issued by Boatmen's. Unless
otherwise specified in the applicable Prospectus Supplement,
Boatmen's Trust Company will be the transfer agent and registrar for
the Preferred Stock and any Depositary Shares.
Under interpretations adopted by the Board of Governors of the
Federal Reserve System ("Federal Reserve Board"), if the holders of
any series of the Preferred Stock become entitled to vote for the
election of directors because dividends on such series are in arrears
as described under "Voting Rights" below, such series may then be
deemed a "class of voting securities" and a holder of 25% or more of
such series (or a holder of 5% or more if it otherwise exercises a
"controlling influence" over Boatmen's) may then be subject to
regulation as a bank holding company in accordance with the Bank
Holding Company Act of 1956, as amended. In addition, at such time
as such series is deemed a class of voting securities, any other bank
holding company may be required to obtain the prior approval of the
Federal Reserve Board to acquire 5% or more of such series, and any
person other than a bank holding company may be required to obtain
the prior approval of the Federal Reserve Board to acquire 10% or
more of such series.
Dividends. The holders of the Preferred Stock of each series
will be entitled to receive, when, as and if declared by the Board
of Directors of Boatmen's or a duly authorized committee thereof, out
of funds legally available therefor, cash dividends at such rates and
on such dates as will be set forth in the Prospectus Supplement
relating to such series. Such rates may be fixed or variable or
both. If variable, the formula used for determining the dividend
rate for each dividend period will be set forth in the Prospectus
Supplement. Dividends will be payable to the holders of record as
they appear on the stock
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<PAGE> 24
books of Boatmen's on such record dates as
will be fixed by the Board of Directors of Boatmen's or a duly
authorized committee thereof. Dividends on any series of the
Preferred Stock may be cumulative or noncumulative, as provided in
the applicable Prospectus Supplement. If the Board of Directors of
Boatmen's fails to declare a dividend payable on a dividend payment
date on any series of the Preferred Stock for which dividends are
noncumulative ("Noncumulative Preferred Stock"), then the holders of
such series of the Preferred Stock will have no right to receive a
dividend in respect of the dividend period ending on such dividend
payment date, and Boatmen's will have no obligation to pay the
dividend accrued for such period, whether or not dividends on such
series are declared payable on any future dividend payment dates.
Except as provided in the next sentence below, no dividend
(other than dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common
Stock or any other stock of Boatmen's ranking junior to the Preferred
Stock as to dividends and upon liquidation) shall be declared or paid
or set aside for payment or other distribution declared or made upon
the Common Stock or any other stock of Boatmen's ranking junior to
or on a parity with the Preferred Stock as to dividends or upon
liquidation, nor shall any Common Stock nor any other stock of
Boatmen's ranking junior to or on a parity with the Preferred Stock
as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any shares
of any such stock) by Boatmen's (except by conversion into or
exchange for stock of Boatmen's ranking junior to the Preferred Stock
as to dividends and upon liquidation) unless, in each case, the full
dividends on each series of the Preferred Stock shall have been paid
or declared and set aside for payment. When dividends are not paid
in full upon any series of the Preferred Stock and any other
preferred stock of Boatmen's ranking on a parity as to dividends with
the Preferred Stock, all dividends declared or made upon shares of
Preferred Stock of each series and any other preferred stock of
Boatmen's ranking on a parity as to dividends with the Preferred
Stock shall be declared pro rata so that the amount of dividends
declared per share on Preferred Stock of each series and such other
preferred stock shall in all cases bear to each other the same ratio
that accrued dividends per share (which, in the case of Noncumulative
Preferred Stock, shall not include any accumulation in respect of
unpaid dividends for prior dividend periods) on shares of each series
of the Preferred Stock and such other preferred stock bear to each
other. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on any series
of the Preferred Stock which may be in arrears.
Redemption. A series of the Preferred Stock may be redeemable,
in whole or in part, at the option of Boatmen's, and may be subject
to mandatory redemption pursuant to a sinking fund or otherwise, in
each case upon terms, at the times and at the redemption prices set
forth in the Prospectus Supplement relating to such series. Shares
of Preferred Stock of any series which are redeemed by Boatmen's will
be restored to the status of authorized but unissued shares of
Preferred Stock without designation as to series. The Prospectus
Supplement relating to a series of the Preferred Stock which is
subject to mandatory redemption will specify the number of shares of
such series of the Preferred Stock which shall be redeemed by
Boatmen's in each year commencing after a date to be specified, at
a redemption price per share to be specified, together with an amount
equal to all accrued and unpaid dividends thereon to the date of
redemption. The redemption price may be payable in cash or other
property, as specified in the Prospectus Supplement relating to such
series of the Preferred Stock. If the redemption price is payable
only from the net proceeds of the issuance of capital stock of
Boatmen's, the terms of such series may provide that, if no such
capital stock shall have been issued or to the extent the net
proceeds from any issuance are insufficient to pay in full the
aggregate redemption price then due, the applicable shares of such
series of the Preferred Stock shall automatically and mandatorily be
converted into shares of the applicable capital stock of Boatmen's
pursuant to conversion provisions specified in the Prospectus
Supplement relating to such series of the Preferred Stock. If fewer
than all of the outstanding shares of any series of the Preferred
Stock are
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<PAGE> 25
to be redeemed, the number of shares to be redeemed will
be determined by the Board of Directors of Boatmen's and such shares
shall be redeemed pro rata from the holders of record of such shares
in proportion to the number of such shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by lot in
a manner determined by the Board of Directors of Boatmen's.
Notice of redemption shall be given by mailing the same to
each record holder of the shares to be redeemed, not less than 30 nor
more than 60 days prior to the date fixed for redemption thereof, to
the respective addresses of such holders as the same shall appear on
the stock books of Boatmen's. Each such notice shall state: (i) the
redemption date, (ii) the number of shares and series of the
Preferred Stock to be redeemed, (iii) the redemption price, (iv) the
place or places where certificates for such shares of Preferred Stock
are to be surrendered for payment of the redemption price, (v) that
dividends on the shares to be redeemed will cease to accrue on such
redemption date, and (vi) the date upon which the holder's conversion
rights as to such shares, if any, shall terminate. If fewer than all
shares of any series of the Preferred Stock held by any holder are
to be redeemed, the notice mailed to such holder shall also specify
the number of shares to be redeemed from such holder. If notice of
redemption has been given, from and after the redemption date for the
shares of the series of Preferred Stock called for redemption (unless
default shall be made by Boatmen's in providing money for the payment
of the redemption price of the shares so called for redemption)
dividends on the shares of Preferred Stock so called for redemption
shall cease to accrue and such shares shall no longer be deemed to
be outstanding, and all rights of the holders thereof as stockholders
of Boatmen's (except the right to receive the redemption price) shall
cease. Upon surrender in accordance with such notice of the
certificates representing the shares so redeemed (properly endorsed
or assigned for transfer, if the Board of Directors of Boatmen's
shall so require and the notice shall so state), the redemption price
set forth above shall be paid out of funds provided by Boatmen's.
If fewer than all of the shares represented by any such certificate
are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
Conversion. The Prospectus Supplement relating to a series of
the Preferred Stock which is convertible will state the terms on
which shares of that series are convertible into shares of Common
Stock or another series or class of stock or other securities of
Boatmen's.
Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of Boatmen's, the
holders of shares of each series of the Preferred Stock and any other
preferred stock ranking on a parity with such series of the Preferred
Stock upon liquidation will be entitled to receive out of the assets
of Boatmen's available for distribution to stockholders, before any
distribution of assets is made to holders of the Common Stock or any
other class or series of stock of Boatmen's ranking junior to such
series of the Preferred Stock upon liquidation, liquidating
distributions in the amount set forth in the Prospectus Supplement
relating to such series of the Preferred Stock plus an amount equal
to the sum of all accrued and unpaid dividends (whether or not earned
or declared) for the then current dividend period and, if such series
of the Preferred Stock is cumulative, for all dividend periods prior
thereto. Neither the sale of all or substantially all of the
property and assets of Boatmen's, nor the merger or consolidation of
Boatmen's into or with any other corporation nor the merger or
consolidation of any other corporation into or with Boatmen's shall
be deemed to be a dissolution, liquidation or winding up. If, upon
any voluntary or involuntary liquidation, dissolution or winding up
of Boatmen's, the assets of Boatmen's available for distribution to
the holders of the Preferred Stock of any series and any other shares
of stock of Boatmen's ranking as to any such distribution on a parity
with such series of the Preferred Stock shall be insufficient to pay
in full all amounts to which such holders are entitled, no such
distribution shall be made on account of any shares of any other
series of the Preferred Stock or other securities of Boatmen's
ranking as to any such distribution on a parity with the shares of
Preferred Stock of such series upon such dissolution,
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liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of Preferred Stock of such series, ratably,
in proportion to the full distributive amounts for which holders of
all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up. After payment of the full
amount of the liquidation distribution to which they are entitled.
the holders of such series of the Preferred Stock will have no right
or claim to any of the remaining assets of Boatmen's.
Voting Rights. Except as indicated in the Prospectus Supplement
relating to a particular series of the Preferred Stock, or except as
expressly required by applicable law, the holders of the Preferred
Stock will not be entitled to vote. In the event shares of a series
of the Preferred Stock are entitled to vote on any matter, unless
otherwise indicated in the Prospectus Supplement relating to such
series, each share will be entitled to one vote on such matter.
However, as more fully described under "Description of Depositary
Shares", if Boatmen's elects to provide for the issuance of
Depositary Shares representing fractional interests in a share of
such series of the Preferred Stock, the holders of each such
Depositary Share will, in effect, be entitled through the Depositary
to such fraction of a vote, rather than a full vote. In the case of
any series of Preferred Stock having one vote per share on matters
on which holders of such series are entitled to vote, the voting
power of such series, on matters on which holders of such series and
holders of any other series of the Preferred Stock or another series
of preferred stock of Boatmen's are entitled to vote as a single
class, will depend on the number of shares in such series, not the
aggregate stated value, liquidation preference or initial offering
price of the shares of such series of the Preferred Stock.
Under Missouri law, holders of the outstanding shares of
a class are entitled to vote as a class upon a proposed amendment to
a corporation's articles of incorporation, whether or not entitled
to vote thereon by such articles of incorporation, if the amendment
would (1) increase or decrease the aggregate number of authorized
shares of the class, or (2) increase or decrease the aggregate par
value of authorized shares of the class, or (3) effect an exchange,
reclassification or cancellation of all or part of the shares of the
class, or (4) effect an exchange or create a right of exchange of all
or part of the shares of the class into shares of another class, or
(5) change the designations, preferences, limitations or relative
rights of the shares of the class, or (6) change the shares of the
class, whether with or without par value, into the same or a
different number of shares, whether with or without par value, of the
same class or another class, or (7) create a new class of shares
having rights and preferences prior or superior to the shares of the
class, or increase the rights, preferences or number of authorized
shares of any such prior or superior class, or (8) in the case of
preferred shares, divide the shares into series and fix and determine
the designations, preferences, limitations or relative rights between
shares of the series, or authorize the board of directors to do so,
or (9) establish, limit or deny the preemptive rights (if any) of the
shares of the class, or (10) cancel or otherwise affect dividends on
shares of the class which have accrued but have not been declared,
provided, that, unless the articles of incorporation provide
otherwise, a merger or consolidation which does not affect the number
of authorized shares, par value, designations, preferences,
limitations or relative rights of shares of a preferred class is not
deemed to constitute an amendment for purposes of Missouri law.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement
of certain provisions of the Deposit Agreement (as defined below) and
of the Depositary Shares and Depositary Receipts does not purport to
be complete and is subject to and qualified in its entirety by
reference to the form of Deposit Agreement and form of Depositary
Receipts relating to each series of the Preferred Stock (attached as
an exhibit to the Deposit Agreement) which are filed with the S.E.C.
as an exhibit to the Registration Statement.
GENERAL
Boatmen's may, at its option, elect to offer fractional
interests in shares of Preferred Stock, rather than full shares of
Preferred Stock. In the event such option is exercised, Boatmen's
will provide for the issuance by a Depositary to the public of
Depositary Receipts evidencing Depositary Shares, each of which will
represent a fractional interest (to be set forth in the Prospectus
Supplement relating to a particular series of the Preferred Stock)
in a share of a particular series of the Preferred Stock as described
below.
The shares of any series of the Preferred Stock underlying the
Depositary Shares will be deposited under a separate Deposit
Agreement (the "Deposit Agreement") between Boatmen's and a bank or
trust company selected by Boatmen's having its principal office in
the United States and having a combined capital and surplus of at
least $50,000,000 (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and
address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fractional interest in a share of
Preferred Stock underlying such Depositary Share, to all the rights
and preferences of the Preferred Stock underlying such Depositary
Share (including dividend, voting, redemption, conversion and
liquidation rights).
Pending the preparation of definitive engraved Depositary
Receipts, the Depositary may, upon the written order of Boatmen's,
issue temporary Depositary Receipts substantially identical to (and
entitling the holders thereof to all the rights pertaining to) the
definitive Depositary Receipts but not in definitive form.
Definitive Depositary Receipts will be prepared thereafter without
unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at Boatmen's expense.
Upon surrender of the Depositary Receipts at the designated
office of the Depositary (unless the related Depositary Shares have
previously been called for redemption), the owner of the Depositary
Shares evidenced thereby is entitled to delivery at such office, to
or upon his order, of the number of whole shares of Preferred Stock
and any money or other property represented by such Depositary
Shares. Partial shares of Preferred Stock will not be issued. If
the Depositary Receipts delivered by the holder evidence a number of
Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Preferred Stock to be
withdrawn, the Depositary will deliver to such holder at the same
time a new Depositary Receipt evidencing such excess number of
Depositary Shares. Holders of shares of Preferred Stock thus
withdrawn will not thereafter be entitled to deposit such shares
under the Deposit Agreement or to receive Depositary Shares therefor.
Boatmen's does not expect that there will be any public trading
market for the shares of any series of Preferred Stock represented
by Depositary Shares except as represented by the Depositary Shares.
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<PAGE> 28
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the
record holders of the Depositary Shares relating to such Preferred
Stock in proportion to the number of such Depositary Shares owned by
such holders on the relevant record date. The Depositary shall
distribute only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one
cent, and any balance not so distributed shall be added to and
treated as part of the next sum received by the Depositary for
distribution to record holders of Depositary Shares. In the event of
a distribution other than in cash, the Depositary will distribute
property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not
feasible to make such distribution, in which case the Depositary may,
with the approval of Boatmen's, sell such property and distribute the
net proceeds from such sale to such holders. The Deposit Agreement
will also contain provisions relating to the manner in which any
subscription or similar rights offered by Boatmen's to holders of the
Preferred Stock shall be made available to holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary
Shares is subject to redemption, the Depositary Shares will be
redeemed from the proceeds received by the Depositary resulting from
the redemption, in whole or in part, of such series of the Preferred
Stock held by the Depositary. The Depositary shall mail notice of
redemption, promptly after receiving notice from Boatmen's of such
redemption, to the record holders of the Depositary Shares to be so
redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share shall be equal to
the applicable fraction of the redemption price per share payable
with respect to such series of Preferred Stock. Whenever Boatmen's
redeems shares of Preferred Stock held by the Depositary, the
Depositary will redeem as of the same redemption date the number of
Depositary Shares relating to shares of Preferred Stock so redeemed.
If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata
as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and
all rights of the holders of the Depositary Shares will cease, except
the right to receive the moneys payable upon such redemption and any
money or other property to which the holders of such Depositary
Shares were entitled upon such redemption upon surrender to the
Depositary of the Depositary Receipts evidencing such Depositary
Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of
the Preferred Stock are entitled to vote, the Depositary will mail
the information contained in such notice of meeting to the record
holders of the Depositary Shares relating to such Preferred Stock.
Each record holder of such Depositary Shares on the record date
(which will be the same date as the record date for the Preferred
Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the number of shares
of Preferred Stock underlying such Depositary Shares in accordance
with such instructions and Boatmen's will agree to take all action
which may be deemed necessary by the Depositary in order to enable
the Depositary to do so. The Depositary will abstain from voting
shares of Preferred Stock to the extent it does not receive specific
instructions from the holders of Depositary Shares relating to such
Preferred Stock.
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TAXATION
Owners of Depositary Shares will be treated for Federal income
tax purposes as if they were owners of the Preferred Stock
represented by such Depositary Shares and, accordingly, will be
entitled to take into account for Federal income tax purposes income
and deductions to which they would be entitled if they were holders
of such Preferred Stock. In addition, (i) no gain or loss will be
recognized for Federal income tax purposes upon the withdrawal of
Preferred Stock in exchange for Depositary Shares as provided in the
Deposit Agreement, (ii) the tax basis of each share of Preferred
Stock to an exchanging owner of Depositary Shares will, upon such
exchange, be the same as the aggregate tax basis of the Depositary
Shares exchanged therefor, and (iii) the holding period for shares
of the Preferred Stock will include the period during which such
person owned such Depositary Shares.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares
and any provision of the Deposit Agreement may at any time be amended
by agreement between Boatmen's and the Depositary. However, any
amendment which imposes or increases any fees, taxes or charges upon
holders of Depositary Receipts (other than taxes and governmental
charges and such other charges as stated below under "Charges of
Depositary") or materially and adversely alters the rights of the
existing holders of Depositary Shares will not be effective unless
such amendment has been approved by the record holders of at least
a majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by Boatmen's or the Depositary only if
(i) all outstanding Depositary Shares relating thereto have been
redeemed or (ii) there has been a final distribution in respect of
the Preferred Stock of the relevant series in connection with any
liquidation, dissolution or winding up of Boatmen's and such
distribution has been distributed to the holders of the related
Depositary Shares.
CHARGES OF DEPOSITARY
Boatmen's will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary
arrangements. Boatmen's will pay charges of the Depositary in
connection with the initial deposit of the Preferred Stock and any
redemption of the Preferred Stock. Holders of Depositary Shares will
pay other transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreement to
be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to Boatmen's
notice of its election to do so, and Boatmen's may at any time remove
the Depositary, any such resignation or removal to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment. Such successor Depositary must be appointed within 60
days after delivery of the notice of resignation or removal and must
be a bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least
$50,000,000.
MISCELLANEOUS
The Depositary will forward to the holders of the Depositary
Shares all reports and communications from Boatmen's which are
delivered to the Depositary and which Boatmen's is required to
furnish to the holders of the Preferred Stock.
24
<PAGE> 30
Neither the Depositary nor Boatmen's will be liable if it is
prevented or delayed by law or any circumstance beyond its control
in performing its obligations under the Deposit Agreement. The
obligations of Boatmen's and the Depositary under the Deposit
Agreement will be limited to performance in good faith of their
duties thereunder except that they are liable for gross negligence
and willful misconduct in the performance of their duties thereunder
and they will not be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock
unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary
Shares or other persons believed to be competent and on documents
believed to be genuine.
DESCRIPTION OF WARRANTS
GENERAL
Boatmen's may issue Warrants to purchase Debt Securities ("Debt
Warrants") or Common Stock, Preferred Stock or Depositary Shares
("Stock Warrants"). Warrants may be issued independently of or
together with any other Securities and may be attached to or separate
from such Securities. Each series of Warrants will be issued under
a separate Warrant Agreement (each a "Warrant Agreement") to be
entered into between Boatmen's and a Warrant Agent ("Warrant Agent").
The Warrant Agent will act solely as an agent of Boatmen's in
connection with the Warrants of such series and will not assume any
obligation or relationship of agency for or with holders or
beneficial owners of Warrants. The following sets forth certain
general terms and provisions of the Warrants offered hereby. Further
terms of the Warrants and the applicable Warrant Agreement will be
set forth in the applicable Prospectus Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of
any Debt Warrants, including the following: (i) the title of such
Debt Warrants, (ii) the offering price for such Debt Warrants, if
any, (iii) the aggregate number of such Debt Warrants, (iv) the
designation and terms of such Debt Securities purchasable upon
exercise of such Debt Warrants, (v) if applicable, the designation
and terms of the Securities with which such Debt Warrants are issued
and the number of such Debt Warrants issued with each such Security,
(vi) if applicable, the date from and after which such Debt Warrants
and any Securities issued therewith will be separately transferable,
(vii) the principal amount of Debt Securities purchasable upon
exercise of a Debt Warrant and the price at which such principal
amount of Debt Securities may be purchased upon exercise, (viii) the
date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire, (ix) if applicable,
the minimum or maximum amount of such Debt Warrants which may be
exercised at any one time, (x) whether the Debt Warrants represented
by the Debt Warrant certificates or Debt Securities that may be
issued upon exercise of the Debt Warrants will be issued in
registered or bearer form, (xi) information with respect to book-
entry procedures, if any, (xii) the currency, currencies or currency
units in which the offering price, if any, and the exercise price are
payable, (xiii) if applicable, a discussion of certain United States
federal income tax considerations, (xiv) the antidilution provisions
of such Debt Warrants, if any, (xv) the redemption or call
provisions, if any, applicable to such Debt Warrants, and (xvi) any
additional terms of the Debt Warrants, including terms, procedures
and limitations relating to the exchange and exercise of such Debt
Warrants.
25
<PAGE> 31
STOCK WARRANTS
The applicable Prospectus Supplement will describe the terms of
any Stock Warrants, including the following: (i) the title of such
Stock Warrants, (ii) the offering price of such Stock Warrants,
(iii) the aggregate number of such Stock Warrants, (iv) the
designation and terms of the Common Stock, Preferred Stock or
Depositary Shares purchasable upon exercise of such Stock Warrants,
(v) if applicable, the designation and terms of the Securities with
which such Stock Warrants are issued and the number of such Stock
Warrants issued with each such Security, (vi) if applicable, the date
from and after which such Stock Warrants and any Securities issued
therewith will be separately transferrable, (vii) the number of
shares of Common Stock, Preferred Stock or Depositary Shares
purchasable upon exercise of a Stock Warrant and the price at which
such shares may be purchased upon exercise, (viii) the date on which
the right to exercise such Stock Warrants shall commence and the date
on which such right shall expire, (ix) if applicable, the minimum or
maximum amount of such Stock Warrants which may be exercised at any
one time, (x) the currency, currencies or currency units in which the
offering price, if any, and the exercise price are payable, (xi) if
applicable, a discussion of certain United States federal income tax
considerations, (xii) the antidilution provisions of such Stock
Warrants, (xiii) the redemption or call provisions, if any,
applicable to such Stock Warrants, and (xiv) any additional terms of
such Stock Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Stock Warrants.
PLAN OF DISTRIBUTION
Boatmen's may sell the Securities in or outside the United
States: (i) through underwriters or dealers, (ii) directly to a
limited number of purchasers or to a single purchaser, or
(iii) through agents. The Prospectus Supplement with respect to the
securities offered thereby (the "Offered Securities") will set forth
the terms of the offering of the Offered Securities, including the
name or names of any underwriters or agents, the purchase price of
the Offered Securities and the proceeds to Boatmen's from such sale,
any delayed delivery arrangements, any underwriting discounts and
other items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
If underwriters are used in the sale, the Offered Securities
will be acquired by the underwriters for their own account and may
be resold from time to time 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 Securities may
be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering of
Securities will be named in the Prospectus Supplement relating to
such offering and, if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover of such
Prospectus Supplement. Unless otherwise set forth in the Prospectus
Supplement relating thereto, the obligations of the underwriters to
purchase the Offered Securities will be subject to conditions
precedent and the underwriters will be obligated to purchase all the
Offered Securities if any are purchased.
If dealers are utilized in the sale of Offered Securities in
respect of which this Prospectus is delivered, Boatmen's will sell
such Offered Securities to the dealers as principals. The dealers
may then resell such Offered Securities to the public at varying
prices to be determined by such dealers at the time
26
<PAGE> 32
of resale. The names of the dealers and the terms of the transaction
will be set forth in the Prospectus Supplement relating thereto.
The Securities may be sold directly by Boatmen's or through
agents designated by Boatmen's from time to time. Any agent involved
in the offer or sale of the Offered Securities in respect to which
this Prospectus is delivered will be named, and any commissions
payable by Boatmen's to such agent will be set forth, in the
Prospectus Supplement relating thereto. Unless otherwise indicated
in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
The Securities may be sold directly by Boatmen's to
institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with respect
to any resale thereof. The terms of any such sales will be described
in the Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, Boatmen's will
authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase Offered Securities from
Boatmen's at the public offering price set forth in the Prospectus
Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such
contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth
the commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under
agreements entered into with Boatmen's to indemnification by
Boatmen's against certain civil liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments
which such agents, dealers or underwriters may be required to make
in respect thereof. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services for
Boatmen's in the ordinary course of business.
The Securities may or may not be listed on a national securities
exchange. No assurances can be given that there will be a market for
the Securities.
LEGAL OPINIONS
Certain legal matters in connection with the Securities
offered hereby will be passed upon for Boatmen's by Lewis, Rice &
Fingersh, St. Louis, Missouri.
EXPERTS
The consolidated financial statements for the year ended
December 31, 1993 of Boatmen's Bancshares, Inc., incorporated by
reference in Boatmen's Annual Report on Form 10-K, have been audited
by Ernst & Young, independent auditors, as set forth in their report
thereon incorporated by reference therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of
such firm as experts in auditing and accounting.
The consolidated income statement and statements of changes in
shareholders' equity and cash flows of First Interstate of Iowa, Inc.
and subsidiaries for the year ended December 31, 1991,
27
<PAGE> 33
incorporated by reference herein, have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The consolidated statements of operations, changes in stockholders' equity
and cash flows of Sunwest Financial Service, Inc. and subsidiaries for the year
ended December 31, 1991, incorporated by reference herein have been incorporated
by reference herein in reliance upon the report of KPMG Peat Marwick,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
The consolidated statements of income, stockholders' equity and cash flows
of First Amarillo Bancorporation, Inc. and subsidiaries for the year ended
December 31, 1991, incorporated by reference herein have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
28
<PAGE> 34
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
The following table sets forth the estimated expense in
connection with the issuance and distribution of the securities
described in the Registration Statement:
<S> <C>
Securities Act Registration Fee . . . . . . . . . . . . . .$103,448
"Blue Sky" Registration Fees . . . . . . . . . . . . . . . 20,000
Trustee's Fees . . . . . . . . . . . . . . . . . . . . . . 20,000
Rating Agency Fees . . . . . . . . . . . . . . . . . . . . 142,500
Depositary Fees and Expenses. . . . . . . . . . . . . . . . 10,000
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . 25,000
Accounting Fees and Expenses. . . . . . . . . . . . . . . . 50,000
Printing and Engraving Expenses . . . . . . . . . . . . . . 30,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 10,000
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . .$410,948
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 351.355(1) and (2) of The General and Business
Corporation Law of the State of Missouri provides that a corporation
may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit
or proceeding by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful, except that, in the case of an action or suit by or in
the right of the corporation, the corporation may not indemnify such
persons against judgments and fines and no person shall be
indemnified as to any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation, unless and only
to the extent that the court in which the action or suit was brought
determines upon application that such person is fairly and reasonably
entitled to indemnity for proper expenses. Section 351.355(3)
provides that, to the extent that a director, officer, employee or
agent of the corporation has been successful in the defense of any
such action, suit or proceeding or any claim, issue or matter
therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred in connection with
such action, suit or proceeding. Section 351.355(7) provides that
a Missouri corporation may provide additional indemnification to any
person indemnifiable under subsection (1) or (2), provided such
additional indemnification is authorized by the corporation's
articles of incorporation or an amendment thereto or by a
shareholder-approved bylaw or agreement, and provided further that
no person shall thereby be indemnified against conduct which was
II-1
<PAGE> 35
finally adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct. Article XIII of the Restated
Articles of Incorporation of Registrant provides that Registrant
shall extend to its directors and certain of its executive officers
the indemnification specified in subsections (1) and (2) and the
additional indemnification authorized in subsection (7) and that it
may extend to other officers, employees and agents such
indemnification and additional indemnification.
Pursuant to a policy of directors' and officers' liability
insurance, with total annual limits of $55 million, Registrant's
officers and directors are insured, subject to the limits, retention,
exceptions and other terms and conditions of such policy, against
liability for any actual or alleged error, misstatement, misleading
statement, act or omission, or neglect or breach of duty by the
directors or officers of Registrant in the discharge of their duties
solely in their capacity as directors or officers of Registrant,
individually or collectively, or any matter claimed against them
solely by reason of their being directors or officers of Registrant.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this
Registration Statement:
(1)(a) Form of Underwriting Agreement for Equity
Securities and Warrants to Purchase Equity
Securities;
(1)(b) Form of Underwriting Agreement for Debt
Securities and Warrants to Purchase Debt
Securities;
(4)(a) Form of Trust Indenture between Registrant and
Chemical Bank, Trustee
with respect to Senior Indebtedness;
(4)(b) Form of Third Supplemental Indenture to Trust
Indenture dated as of October 2, 1989 between
Registrant and Chemical Bank, Trustee with
respect to Subordinated Indebtedness;
(4)(c) Form of Deposit Agreement;
(4)(d) Form of Warrant Agreement;
(5) Opinion of Lewis, Rice & Fingersh re legality;
(12) Statement re: Computation of Ratios;
(23)(a) Consent of Ernst & Young;
(23)(b) Consent of KPMG Peat Marwick;
(23)(c) Consent of KPMG Peat Marwick;
(23)(d) Consent of KPMG Peat Marwick;
II-2
<PAGE> 36
(23)(e) Consent of Lewis, Rice & Fingersh (in opinion re
legality);
(24) Powers of Attorney;
(25) Form T-1 Statement of Eligibility and Qualification
of Trustee.
The following exhibits are incorporated herein by reference:
(4)(e) Rights Agreement, dated as of August 14, 1990,
as amended January 26, 1993, of Boatmen's
Bancshares, Inc.;
Note: No long-term debt instrument issued by
Boatmen's Bancshares, Inc. exceeds 10% of the
consolidated total assets of Boatmen's Bancshares,
Inc. and its subsidiaries. In accordance with
paragraph 4(iii) of Item 601 of Regulation S-K,
Boatmen's Bancshares, Inc. will furnish to the S.E.C.
upon request copies of long-term debt instruments and
related agreements.
(b) No financial statement schedules are required to be filed
herewith pursuant to Item 21(b) or (c) of this Form.
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) 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 Registrant pursuant to Section 13 or 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 of 1933, 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.
II-3
<PAGE> 37
(3) To remove from registration by means of a post effective
amendment any of the securities being offered 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, as
amended, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended, 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.
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 a registration statement in reliance upon
Rule 430A and contained in the 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 the registration
statement as of the time it was declared effective.
(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.
The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act ("Act") in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions (see Item 15 -- Indemnification of Directors and
Officers), or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy expressed in the Securities
Act of 1933, as amended, 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.
II-4
<PAGE> 38
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3
and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
St. Louis, State of Missouri, on April 13, 1994.
BOATMEN'S BANCSHARES, INC.
By /s/ Andrew B. Craig, III
----------------------------------------------
Andrew B. Craig, III
Chairman of the Board, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities indicated on April 13, 1994.
/s/ Andrew B. Craig, III Chairman of the Board, President and
- -------------------------------- Chief Executive Officer (principal
Andrew B. Craig, III executive officer)
/s/ James W. Kienker Executive Vice President and Chief
- -------------------------------- Financial Officer (principal financial
James W. Kienker and accounting officer)
* Vice Chairman and Director
- --------------------------------
Samuel B. Hayes, III
* Vice Chairman and Director
- --------------------------------
John Peters MacCarthy
* Director
- --------------------------------
Richard L. Battram
* Director
- --------------------------------
B. A. Bridgewater, Jr.
Director
- --------------------------------
William E. Cornelius
II-5
<PAGE> 39
* Director
- --------------------------------
Ilus W. Davis
* Director
- --------------------------------
Michael G. Fitt
* Director
- --------------------------------
John E. Hayes, Jr.
* Director
- --------------------------------
Ike Kalangis
* Director
- --------------------------------
Lee M. Liberman
* Director
- --------------------------------
William E. Maritz
* Director
- --------------------------------
Andrew E. Newman
* Director
- --------------------------------
Jerry E. Ritter
* Director
- --------------------------------
William P. Stiritz
* Director
- --------------------------------
Albert E. Suter
* Director
- --------------------------------
Dwight D. Sutherland
* Director
- --------------------------------
Theodore C. Wetterau
/s/ James W. Kienker
---------------------------
*Attorney-in-fact
II-6
<PAGE> 40
INDEX TO EXHIBITS
Number Exhibit
- ------ -------
(1)(a) Form of Underwriting Agreement for Equity
Securities and Warrants to Purchase
Equity Securities.
(1)(b) Form of Underwriting Agreement for Debt
Securities and Warrants to Purchase Debt
Securities.
(4)(a) Form of Trust Indenture between
Registrant and Chemical Bank, Trustee
with respect to Senior Indebtedness.
(4)(b) Form of Third Supplemental Indenture to
Trust Indenture dated as of October 2,
1989 between Registrant and Chemical
Bank, Trustee with respect to
Subordinated Indebtedness.
(4)(c) Form of Deposit Agreement.
(4)(d) Form of Warrant Agreement.
(4)(e) Rights Agreement, dated as of August 14,
1990, is incorporated herein by reference
from Exhibits 1 and 2 to Registrant's
Registration Statement on Form 8-A;
Amendment to Rights Agreement, dated as
of January 26, 1993, is incorporated
herein by reference from Registrant's
Annual Report on Form 10-K for the fiscal
year ended December 31, 1993.
(5) Opinion of Lewis, Rice & Fingersh re legality.
(12) Statement re: Computation of Ratios.
(23)(a) Consent of Ernst & Young.
(23)(b) Consent of KPMG Peat Marwick.
(23)(c) Consent of KPMG Peat Marwick.
(23)(d) Consent of KPMG Peat Marwick.
(23)(e) Consent of Lewis, Rice & Fingersh (in opinion re legality).
(24) Powers of Attorney.
(25) Form T-1 Statement of Eligibility and Qualification of
Trustee.
<PAGE> 1
EXHIBIT 1(a)
BOATMEN'S BANCSHARES, INC.
EQUITY SECURITIES
WARRANTS TO PURCHASE EQUITY SECURITIES
------------------------
FORM OF UNDERWRITING AGREEMENT
-------------------------
Date
<PAGE> 2
BOATMEN'S BANCSHARES, INC.
EQUITY SECURITIES
WARRANTS TO PURCHASE EQUITY SECURITIES
UNDERWRITING AGREEMENT
Date
To the Representatives
named in Schedule I hereto
of the Underwriters named in
Schedule II hereto
Dear Sirs:
Boatmen's Bancshares, Inc., a Missouri corporation (the
"Corporation"), proposes to issue and sell to the underwriters
named in Schedule II hereto (the "Underwriters") for whom you are
acting as representatives (the "Representatives") the shares of its
preferred stock (the "Preferred Stock") or common stock (the
"Common Stock") or warrants representing rights to purchase
Preferred Stock or Common Stock of the Corporation (the "Warrants")
as are specified in Schedule I hereto (the securities so specified
being hereinafter referred to collectively as the "Offered
Securities") on the terms and conditions stated herein and in
Schedule I. The Offered Securities are to be sold to each
Underwriter, acting severally and not jointly, in the respective
numbers as are set forth in Schedule II opposite the name of such
Underwriter.
Any series of the Preferred Stock may, at the Corporation's
option, when issued, be deposited by the Corporation against
delivery of depositary receipts (the "Receipts") to be issued by
one or more banks or trust companies selected by the Corporation,
as depositary (collectively, the "Depositary"), under one or more
deposit agreements (collectively, the "Deposit Agreement") between
the Corporation and the Depositary. The Receipts will evidence
depositary shares (the "Depositary Shares") and each Depositary
Share will represent a fraction of a share of Preferred Stock if
and as set forth in Schedule I. Any Depositary Shares with respect
to shares of Preferred Stock referred to herein are sometimes
referred to as "Designated Depositary Shares."
The Warrants will be evidenced by warrant certificates issued
by one or more warrant agents (collectively, the "Warrant Agent")
under one or more warrant agreements (collectively, the "Warrant
Agreement") between the Corporation and the Warrant Agent. The
Warrants will be deposited with the Warrant Agent under the Warrant
Agreement.
The Corporation has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on
Form S-3 (File No. 33-----------), including a combined prospectus,
relating to certain of its debt securities, preferred stock, common
stock, depositary shares and warrants (including the Offered
Securities) and the offering thereof from
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time to time in
accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"). Such registration statement has been
declared effective by the Commission. A prospectus supplement
reflecting the terms of the Offered Securities, the terms of the
offering thereof and the other matters set forth therein has been
prepared and will be filed pursuant to Rule 424 under the 1933 Act.
Such prospectus supplement, in the form first filed after the date
hereof pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement". Such registration statement, as amended
at the date hereof, including the exhibits thereto and the
documents incorporated by reference therein, is herein called the
"Registration Statement", and the basic prospectus included therein
relating to all offerings of securities under the Registration
Statement (the "Basic Prospectus"), as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except
that, if such Basic Prospectus is amended or supplemented on or
prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the
Basic Prospectus as so amended or supplemented and as supplemented
by the Prospectus Supplement, in either case including the
documents filed by the Corporation with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
that are incorporated by reference therein.
I.
The Corporation represents and warrants to each of the
Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) The Corporation has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Missouri, is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended, and the
rules and regulations of the Board of Governors of the Federal
Reserve System (the "Board") thereunder, is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Corporation and its subsidiaries,
taken as a whole.
(c) Each subsidiary of the Corporation that is a bank has
been duly organized, is validly existing as a national banking
association in good standing under the laws of the United States or
as a bank in good standing under the laws of a state thereof, as
the case may be, and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Corporation and its subsidiaries, taken as a whole.
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(d) Each subsidiary of the Corporation that is not a bank has
been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
affect on the Corporation and its subsidiaries, taken as a whole.
(e) The Corporation and its subsidiaries are in compliance in
all material respects with all applicable regulations of the Board,
the Office of the Comptroller of the Currency (the "OCC"), the
Federal Deposit Insurance Corporation (the "FDIC") and any state
bank regulatory authority with jurisdiction over any of the
Corporation's subsidiary banks, the failure to comply with which
would have a material adverse affect on the Corporation and its
subsidiaries, taken as a whole.
(f) All of the issued and outstanding capital stock of each
direct or indirect subsidiary of the Corporation has been duly and
validly issued and is fully paid and nonassessable (subject,
however, to the provisions of Section 55, Title 12, United States
Code) and (except for directors' qualifying shares and except for
minority interests not in excess of seven percent of the issued and
outstanding capital stock of Boatmen's Bank of Quincy and one
percent of the issued and outstanding capital stock of Boatmen's
Trust Company, Boatmen's Bank of Southern Missouri and Boatmen's
Bank of Sigourney (specify any other exceptions to 100% ownership)
all of such capital stock is owned, directly or indirectly, by the
Corporation, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(g) The authorized capital stock of the Corporation conforms
as to legal matters to the description thereof contained in the
Prospectus.
(h) All of the issued shares of capital stock of the
Corporation have been duly authorized and are validly issued, fully
paid and nonassessable.
(i) The Corporation has all necessary corporate power to
issue and deliver the Offered Securities and, if the Offered
Securities include Preferred Stock, to execute and file with the
Secretary of State of the State of Missouri a certificate of
designation (a "Certificate of Designation") in connection with the
Preferred Stock and to perform its obligations provided for in such
Certificate of Designation; prior to the Closing Date (as defined
below) in respect of Preferred Stock, a Certificate of Designation
relating to such shares of Preferred Stock will have been duly
authorized, executed and filed with the Secretary of State of the
State of Missouri by the Corporation and when any such shares of
Preferred Stock are delivered against payment therefor as provided
in this Agreement, such shares of Preferred Stock will be validly
issued, fully paid and non-assessable. If any such shares of
Preferred Stock are to be represented by Designated Depositary
Shares, then upon deposit by the Corporation of such shares of
Preferred Stock with the Depositary pursuant to the Deposit
Agreement and the due execution by the Depositary of the Deposit
Agreement and the Receipts evidencing the Designated Depositary
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Shares in accordance with the Deposit Agreement, such Designated
Depositary Shares will represent legally valid interests in such
Preferred Stock and will entitle the holders thereof to the rights
specified in the Deposit Agreement and the Designated Depositary
Shares. If the Offered Securities include Common Stock, the Common
Stock has been duly authorized and, upon delivery against payment
therefor as provided in this Agreement, such shares of Common Stock
will be validly issued, fully paid and non-assessable. If the
Offered Securities include Warrants, upon due execution,
countersignature and delivery as provided for in the Warrant
Agreement, the Warrants in definitive form will constitute valid
and legally binding obligations of the Corporation and the Warrants
may be exercised to purchase Preferred Stock or Common Stock in
accordance with the terms and conditions of the Warrant Agreement.
Any shares of Preferred Stock and Common Stock initially issuable
upon exercise of the Warrants have been duly authorized and
reserved for issuance upon such exercise and, when so issued, will
be validly issued, fully paid and non-assessable and free of
preemptive rights, with no personal liability attaching to the
ownership thereof. All corporate and shareholder action required
to be taken for the authorization, execution and filing of the
applicable Certificate of Designation and for the authorization,
issuance and sale of the Offered Securities shall have been validly
and sufficiently taken prior to the Closing Date. Each of the
Offered Securities conform as to legal matters to the description
thereof contained in the Prospectus.
(j) The Corporation has all necessary corporate power and
authority to execute and deliver any Deposit Agreement, any Warrant
Agreement and any agreements between or among the Corporation, and
any other agent in connection with any dividend and any depositary
or nominee (collectively, the "Agency Agreements") and to perform
its obligations provided for in such Deposit Agreement, Warrant
Agreement and Agency Agreements; prior to the Closing Date, any
Deposit Agreement, any Warrant Agreement and any Agency Agreement
will have each been duly authorized, executed and delivered by the
Corporation, will be substantially in the form theretofore
delivered to the Underwriters and assuming due authorization,
execution and delivery by the other parties thereto, will each
constitute a valid and legally binding obligation of the
Corporation, enforceable against the Corporation in accordance with
its respective terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity
(regardless or whether enforcement is considered in a proceeding in
equity or at law); and any Deposit Agreement, Warrant Agreement and
Agency Agreement conforms as to legal matters to the description
thereof contained in the Prospectus.
(k) This Agreement has been duly authorized, executed and
delivered by the Corporation.
(l) The issuance, sale and delivery of any of the Offered
Securities, the execution, delivery, filing and performance of this
Agreement, any Deposit Agreement, any Warrant Agreement, any Agency
Agreement and Certificate of Designation, the compliance by the
Corporation with the terms therein and the consummation of the
transactions contemplated herein do not and will not conflict with
or result in a breach of any of the terms or provisions of, or
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constitute a default under, the charter documents or by-laws of the
Corporation or any of its subsidiaries or any agreement or other
instrument binding upon the Corporation or any of its subsidiaries
that is material to the Corporation and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Corporation or any
subsidiary, and no consent, approval or authorization or order of,
or qualification with, any governmental body or agency (including,
without limitation, the Board, the OCC and the FDIC) is required
for the performance by the Corporation of its obligations under
this Agreement, any Deposit Agreement, any Warrant Agreement, any
Agency Agreement and Certificate of Designation, except such as are
specified and have been obtained and such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Offered Securities.
(m) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Corporation and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement.
(n) There is no legal or governmental proceeding pending or
threatened to which the Corporation or any of its subsidiaries is,
or is threatened to be, a party or to which any of properties of
the Corporation or any of its subsidiaries is, or is threatened to
be, subject that is required to be described in the Registration
Statement or the Prospectus and is not so described or any statute,
regulation, contract or other document that is required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required.
(o) Each Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act and the rules and
regulations of the Commission thereunder.
(p) (i) Each document, if any, filed or to be filed pursuant
to the 1934 Act, and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with
the 1934 Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not
contain, any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects
with the 1933 Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Basic Prospectus does not
contain and the Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
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The foregoing representations and warranties do not apply to
statements or omissions in the Registration Statement, the Basic
Prospectus or the Prospectus based upon information furnished to
the Corporation in writing by any Underwriter expressly for use
therein.
II.
Subject to the terms and conditions, and in reliance upon the
representations and warranties, set forth herein or incorporated by
reference herein, the Corporation hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the
respective principal amounts of such Offered Securities set forth
opposite their names on Schedule II hereto, at the purchase prices
set forth on Schedule I hereto (the "Purchase Price").
Between the date hereof and the Closing Date, or such other
date as may be specified in Schedule I, the Corporation will not,
without your prior consent, offer or sell, or enter into any
agreement to sell, any shares of Preferred Stock or Common Stock,
or any Warrants, in any public offering other than (i) the Offered
Securities, and (ii) any shares of Junior Participating Preferred
Shares, Series C.
III.
The Corporation is advised by the Underwriters that the
Underwriters propose to make a public offering of their respective
portions of the Offered Securities as soon after this Agreement is
entered into as in the Underwriters' judgement is advisable. The
terms of the public offering of the Offered Securities are set
forth in the Prospectus.
IV.
Payment of the Purchase Price for, and delivery of, the
Offered Securities shall be made at the date, time and location
specified in Schedule I, or at such other location as shall be
agreed upon by the Corporation and you (such date and time of
payment and delivery being herein called the "Closing Date").
Unless otherwise specified in Schedule I, payment shall be made to
the Corporation by certified or official bank check or checks in
New York Clearing House funds payable to the order of the
Corporation, against delivery of certificates representing any
Preferred Stock or Common Stock, or a global warrant with respect
to any Warrants to be deposited with the Depositary at the Closing
Date to you for the respective accounts of the several
Underwriters.
Unless and to the extent otherwise specified in Schedule I, upon
delivery, shares of Preferred Stock and related Receipts, if included
in the Offered Securities, (i) shall be in such denominations
($1,000 or an integral multiple thereof), and registered in such
names as you may request in writing at least three full business
days before the Closing Date and (ii) will be made
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available in New York City for examination and packaging by
you not later than 10:00 a.m. on the business day prior to the
Closing Date.
V.
The obligations of the Corporation and the several obligations
of the Underwriters hereunder are subject to the condition that the
Prospectus shall have been filed with the Commission pursuant to
Rule 424(b), no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable
satisfaction.
The several obligations of the Underwriters hereunder are
subject to the following further conditions:
(a) There shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Corporation and its subsidiaries, taken as a whole, from
that set forth in the Registration Statement, that, in your
reasonable judgment, is material and adverse and that makes it, in
your reasonable judgment, inadvisable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive
officer of the Corporation, to the effect set forth in clause (a)
above and to the effect that the representations and warranties of
the Corporation contained in this Agreement shall be true and
correct as of the Closing Date and the Corporation shall have
performed all of its obligations to be performed hereunder on or
prior to the Closing Date. The officer signing and delivering such
certificate may rely upon the best of his knowledge as to
proceedings threatened.
(c) You shall have received on the Closing Date an opinion of
Lewis, Rice & Fingersh, independent counsel for the Corporation,
dated the Closing Date, to the effect that
(i) the Corporation has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Missouri, is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as
amended, and the rules and regulations of the Board thereunder
and is not required or licensed to do business as a foreign
corporation in any jurisdiction;
(ii) each of The Boatmen's National Bank of St. Louis,
Boatmen's First National Bank of Kansas City, Boatmen's
Oklahoma, Inc., Boatmen's Sunwest, Inc. and Boatmen's
Bancshares of Iowa, Inc. and any other subsidiary to be
specified has been
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duly organized, is validly existing as a
national banking association in good standing under the laws
of the United States or as a corporation in good standing
under the laws of a state thereof, as the case may be, and is
not required or licensed to do business as a foreign
corporation in any jurisdiction;
(iii) Boatmen's Trust Company has been duly organized,
is validly existing as a trust company in good standing under
the laws of a state thereof and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Corporation
and its subsidiaries, taken as a whole;
(iv) the authorized capital stock of the Corporation
conforms as to legal matters to the description thereof
contained in the Prospectus;
(v) to the knowledge of such counsel, the Corporation
and The Boatmen's National Bank of St. Louis, Boatmen's First
National Bank of Kansas City, Boatmen's Oklahoma, Inc.,
Boatmen's Sunwest, Inc., Boatmen's Bancshares of Iowa, Inc.
and Boatmen's Trust Company (the "Subsidiary Banks") are in
compliance in all material respects with all applicable
regulations of the Board, the OCC, the FDIC and any state bank
regulatory authority with jurisdiction over any of the
Subsidiary Banks;
(vi) all of the issued and outstanding capital stock of
the Subsidiary Banks has been duly and validly issued and is
fully paid and nonassessable (subject, however, to the
provisions of Section 55, Title 12, United States Code) and
(except for directors' qualifying shares and except for
minority interests not in excess of one percent of the issued
and outstanding capital stock of Boatmen's Trust Company (and
any other Subsidiary Bank less than 100% owned) all of the
capital stock of the Subsidiary Banks is owned, directly or
indirectly, by the Corporation free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity;
(vii) any Certificate of Designation, Deposit Agreement,
Warrant Agreement and Agency Agreement has been duly
authorized, executed and delivered by the Corporation and,
assuming the due authorization, execution and delivery thereof
by the parties thereto other than the Corporation, constitutes
a valid and binding obligation of the Corporation, enforceable
against the Corporation in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law);
(vii) the Corporation has all necessary corporate power
and authority to issue and deliver the Offered Securities and,
if the Offered Securities include Preferred Stock, to execute
and file with the Secretary of State of the State of Missouri
the Certificate of
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Designation in connection with the
Preferred Stock and to perform its obligations provided for in
such Certificate of Designation; the Certificate of
Designation relating to any shares of Preferred Stock has been
duly authorized, executed and filed; the shares of Preferred
Stock and Common Stock have been duly authorized by the
Corporation and, upon issuance and delivery of such shares of
Preferred Stock and Common Stock and payment therefor in
accordance with the terms of this Agreement, such shares of
Preferred Stock and Common Stock will be validly issued, fully
paid and non-assessable and no holder thereof will be subject
to personal liability as a result of being such a holder; if
any shares of Preferred Stock are to be represented by
Designated Depositary Shares, then upon deposit by the
Corporation of such shares of Preferred Stock with the
Depositary pursuant to the Deposit Agreement and assuming the
due execution by the Depositary of the Deposit Agreement and
the Receipts in accordance with the terms of the Deposit
Agreement, the Depositary Shares will represent legally valid
interests in the Preferred Shares and will entitle the holders
thereof to the rights specified in the Deposit Agreement and
the Depositary Shares; if the Offered Securities include
Warrants, such Warrants have been duly authorized by the
Corporation, upon due execution, countersignature and
delivery, the Warrants in definitive form will constitute
valid and legally binding obligations of the Corporation, and
the Warrants may be exercised to purchase Common Stock or
Preferred Stock, as the case may be, in accordance with their
terms and the terms of the Warrant Agreement; the shares of
Preferred Stock and Common Stock and the Warrants will not be
subject to the preemptive rights of any stockholder of the
Corporation and no shareholder action is required to be taken
for the authorization, execution and filing of the Certificate
of Designation relating to the shares of Preferred Stock, or
for the authorization, issuance and sale of the shares of
Preferred Stock; and, to the extent any Certificate of
Designation or shares of Preferred Stock contains statements
with respect to procedures permitting, among other things,
variable dividend periods and rates, the Corporation will be
permitted to utilize such procedures to establish such rates;
(viii) the Corporation has all necessary corporate power
and authority to execute and deliver this Agreement, any
Certificate of Designation, any Deposit Agreement, any Warrant
Agreement and any Agency Agreement, and to consummate the
transaction contemplated thereby and perform its obligations
thereunder;
(ix) the Offered Securities and the Certificate of
Designation conform in all material respects as to legal
matters to the descriptions thereof contained in the
Prospectus;
(x) no authorization, approval, consent or license of
any regulatory body or authority (other than under the 1933
Act and the securities or Blue Sky laws of the various states)
and no approval of the stockholders of the Corporation is
required for the valid authorization, issuance, sale and
delivery of the Offered Securities by the Corporation, or for
the execution, delivery or performance of this Agreement, any
Deposit Agreement, any Warrant Agreement, any Agency Agreement
or any Certificate
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of Designation, or, if so required, all
such authorizations, approvals, consents and licenses,
specifying the same, have been obtained and are, to the best
of such counsel's knowledge, in full force and effect;
(xi) the execution and delivery of, and the performance
of its obligations under, this Agreement, any Certificate of
Designation, any Deposit Agreement, any Warrant Agreement and
any Agency Agreement will not contravene any provision of
applicable law or the Restated Articles of Incorporation or
By-laws of the Corporation or any of its subsidiaries or, to
the knowledge of such counsel, any agreement or other
instrument binding upon the Corporation or any of its
subsidiaries that is material to the Corporation and its
subsidiaries taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Corporation or any of its subsidiaries;
(xii) the statements (1) in the Basic Prospectus under
"Description of Boatmen's Common Stock", "Description of
Boatmen's Preferred Stock", "Description of Depositary
Shares", "Description of Warrants" and "Plan of Distribution,"
(2) in the Prospectus Supplement under "------------,"
(3) under the captions "Regulation and Supervision" and "Legal
Proceedings" in the Corporation's latest Annual Report on
Form 10-K that is incorporated by reference in the Prospectus
and (4) in the Registration Statement in Item 15, insofar as
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(xiii) after due inquiry, such counsel does not know of
any legal or governmental proceeding pending or threatened to
which the Corporation or any of its subsidiaries is a party or
to which any of the properties of the Corporation or any of
its subsidiaries is subject that is required to be described
in the Registration Statement or the Prospectus and is not so
described or of any statute, regulation, contract or other
document that is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that is not described or filed as
required; and
(xiv) such counsel (1) is of the opinion that each
document filed pursuant to the 1934 Act and incorporated by
reference in the Registration Statement and the Prospectus
(except for financial statements and schedules as to which
such counsel need not express any opinion) complied when so
filed as to form in all material respects with the 1934 Act
and the applicable rules and regulations of the Commission
thereunder, (2) is of the opinion that the Registration
Statement and the Prospectus and any supplements or amendments
thereto (except for financial statements and schedules as to
which such counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and the rules
and regulations of the Commission thereunder and (3) believes
that (except for financial statements and schedules as to
which such counsel need not express any belief) the
Registration Statement and the Basic Prospectus included
therein
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at the time the Registration Statement became
effective did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and the Prospectus, as amended or supplemented, if
applicable, does not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
With respect to the matters set forth in subparagraph (xiv) of
paragraph (c) above, Lewis, Rice & Fingersh may state that
(1) their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents
thereof, but are without independent check or verification except
as specified, and (2) they are not passing upon the adequacy or
accuracy of the derivation or compilation from the Corporation's
financial statements or financial records of any financial data.
(d) ------------, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Closing Date,
with respect to this Agreement, the Offered Securities, the Deposit
Agreement, the Warrant Agreement, the Certificate of Designation,
the Registration Statement, the Prospectus, and other related
matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request
to enable them to pass upon such matters. In rendering its
opinion, counsel for the Underwriters may rely upon the opinion of
Lewis, Rice & Fingersh referred to in paragraph (c) above as to all
matters of Missouri law.
(e) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Corporation's debt securities
or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Corporation's debt securities or preferred
stock;
(f) Prior to the Closing Date, the Corporation shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(g) You shall have received on the date of this Agreement a
letter dated such date and also on the Closing Date a letter dated
the Closing Date, in each case in form and substance satisfactory
to you, from Ernst & Young, independent public accountants,
containing statements and information covering the matters set
forth in Annex I and the additional matters set forth on
Schedule I.
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VI.
In further consideration of the agreements of the Underwriters
herein contained, the Corporation covenants as follows:
(a) To furnish you, without charge, one manually signed copy
of the Registration Statement (including exhibits thereto and
documents incorporated by reference) and to each other Underwriter
a conformed copy of the Registration Statement (without exhibits
thereto but including documents incorporated by reference).
(b) To prepare the Prospectus Supplement in a form approved
by you and to file such Prospectus pursuant to Rule 424(b) under
the 1933 Act not later than the Commission's close of business on
the second business day following the execution and delivery of
this Agreement; to make no further amendment or any supplement to
the Registration Statement or Prospectus Supplement with respect to
the Offered Securities prior to the Closing Date which shall be
disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any Prospectus Supplement or any amended
Prospectus relating to the Offered Securities has been filed and to
furnish you with copies thereof; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
preliminary prospectus or prospectus, of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any preliminary prospectus or prospectus or suspending
any such qualification, to use promptly its best efforts to obtain
its withdrawal.
(c) Promptly from time to time to take such action as you may
reasonably request to qualify the Offered Securities for offering
and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Offered Securities, provided that in connection therewith the
Corporation shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
(d) To furnish the Underwriters with copies of the Prospectus
in such quantities as you may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time prior
to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Offered
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be
12
<PAGE> 14
necessary during such period to amend
or supplement the Prospectus in order to comply with the 1933 Act,
to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and
in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Offered Securities at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3)
of the 1933 Act;
(e) To make generally available to the Corporation's security
holders as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the 1933 Act and the rules and
regulations of the Commission thereunder.
(f) To pay or cause to be paid the fees, disbursements and
expenses of the Corporation's counsel and accountants in connection
with the registration of the Offered Securities under the 1933 Act
and all other expenses in connection with the preparation, printing
and filing of the Registration Statement and the Prospectus and
amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; the cost of
printing or producing this Agreement, any Blue Sky or legal
investment memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Offered Securities;
all expenses in connection with the qualification of the Offered
Securities for offering and sale under state securities laws as
provided herein, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; any fees
charged by securities rating agencies for rating the Offered
Securities; any filing fees incident to any required review by the
National Association of Securities Dealers, Inc.; and all other
costs or expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided in this
paragraph. It is understood, however, that, except as provided in
this paragraph, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes
on resale of any of the Offered Securities by them, and any
advertising expenses connected with any offers they may make.
VII.
(a) The Corporation will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or
13
<PAGE> 15
necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the
Corporation shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement made in reliance upon and in conformity with written
information furnished to the Corporation by any Underwriter through
you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Corporation against any losses, claims, damages or liabilities to
which the Corporation may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement
or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in any preliminary prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Corporation
by such Underwriter through you expressly for use therein; and will
reimburse the Corporation for any legal or other expenses
reasonably incurred by the Corporation in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Article VII
is unavailable to or insufficient to hold harmless an indemnified
party under paragraph (a) or (b) above in respect
14
<PAGE> 16
of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Corporation on the one hand
and the Underwriters on the other from the offering of the Offered
Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice required
under paragraph (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Corporation on
the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits
received by the Corporation on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received
by the Corporation bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth
in the table on the cover page of the Prospectus Supplement. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Corporation on
the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Corporation
and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this paragraph (d) were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to
above in this paragraph (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this paragraph (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public exceeds the amount
of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this paragraph (d) to contribute are several in
proportion to their respective underwriting obligations and not
joint.
(e) The obligations of the Corporation under this Article VII
shall be in addition to any liability which the Corporation may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Article VII shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the
15
<PAGE> 17
same terms and conditions, to each officer
and director of the Corporation and to each person, if any, who
controls the Corporation within the meaning of the 1933 Act.
VIII.
This Agreement shall be subject to termination in your
absolute discretion, by notice given to the Corporation, if
(a) after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of the Corporation shall have
been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New
York shall have been declared by either federal or New York State
authorities, or (iv) here shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your reasonable judgment, is material
and adverse and (b) in the case of any of the events specified in
clause (a)(iv), such event singly or together with any other such
event makes it, in your reasonable judgment, inadvisable to market
the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
IX.
(a) If any Underwriter shall default in its obligation to
purchase the Offered Securities which it has agreed to purchase
hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such
Offered Securities on the terms contained herein. If within 36
hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Offered Securities, then the
Corporation shall be entitled to a further period of 36 hours
within which to procure another party or other parties satisfactory
to the Representatives to purchase such Offered Securities on such
terms. In the event that, within the respective prescribed period,
the Representatives notify the Corporation that they have so
arranged for the purchase of such Offered Securities or the
Corporation notifies the Representative that it has so arranged for
the purchase of such Offered Securities, the Representatives or the
Corporation shall have the right to postpone the Closing Date for
a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement
or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Corporation agrees to file
promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person
had originally been a party hereto.
16
<PAGE> 18
(b) If, after giving effect to any arrangements for the
purchase of the Offered Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Corporation as provided
in paragraph (a) above, the aggregate offering price of the Offered
Securities that remain unpurchased does not exceed one-eleventh of
the aggregate offering price of the Offered Securities, then the
Corporation shall have the right to require each non-defaulting
Underwriter to purchase the number of the Offered Securities that
such Underwriter agreed to purchase hereunder and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of the Offered Securities that such
Underwriter agreed to purchase hereunder) of the Offered Securities
of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Offered Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Corporation as provided
in paragraph (a) above, the aggregate offering price of the Offered
Securities which remains unpurchased exceeds one-eleventh of the
aggregate offering price of the Offered Securities, as referred to
in paragraph (b) above, or if the Corporation shall not exercise
the right described in paragraph (b) above to require non-
defaulting Underwriters to purchase the Offered Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall
thereupon terminate, without liability on the part of any non-
defaulting Underwriter or the Corporation, except for the expenses
to be borne by the Corporation and the Underwriters as provided
herein and the indemnity and contribution agreements contained
herein; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
X.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the
Corporation to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Corporation
shall be unable to perform its obligations under this Agreement,
the Corporation will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
The respective indemnities, agreements, representations,
warranties and other statements of the Corporation and the several
Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or
the Corporation, or any officer or director or controlling person
of the Corporation, and shall survive delivery of and payment for
the Offered Securities.
17
<PAGE> 19
This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Corporation and, to the extent
provided in Article VII and the preceding paragraph, the officers
and directors of the Corporation and each person who controls the
Corporation or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Offered Securities from any
Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf
of any Underwriter made or given by you jointly or by ------------
on behalf of you as the representatives.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered
or sent by mail, telex or facsimile transmission to you as the
representatives in care of (Name and address of firm) Attention:
- ------------; and if to the Corporation shall be delivered or sent
by mail to the address of the Corporation set forth in the
Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to paragraph (c) of
Article VII hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth
in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Corporation by
you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
This Agreement may be signed in two or more counterparts, each
of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding
agreement between each of the Underwriters and the Corporation. It
is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be
submitted to the Corporation for examination upon request, but
without warranty on your part as to the authority of the signers
thereof.
18
<PAGE> 20
Very truly yours,
BOATMEN'S BANCSHARES, INC.
By ------------------------------------
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I
hereto
By: Name of Representatives
By: ---------------------------------------------
Acting severally on behalf of themselves and
the several Underwriters named in Schedule II
hereto.
By: ---------------------------------------------
19
<PAGE> 21
SCHEDULE I
Underwriting Agreement dated ------------, 199--.
Registration Statement No. 33-----------.
Representatives: -----------------------------------------------
-----------------------------------------------
Title, Purchase Price and Description of Securities:
Title: ----------------------------------------------------
Purchase Price (include type of funds): -------------------
------------------------
------------------------
Description: ----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
Closing Date and Location:
Date of Closing: ------------------------------------------
Time of Closing: ------------------------------------------
Location of Closing: --------------------------------------
--------------------------------------
20
<PAGE> 22
SCHEDULE I (CON'T)
The following terms and conditions supplement the provisions of the
foregoing Underwriting Agreement and, to the extent inconsistent
therewith, replace the provisions of the foregoing Underwriting
Agreement:
The following additional items are to be covered by the letter from
Ernst & Young delivered pursuant to paragraph (g) of Article V of
the foregoing Underwriting Agreement:
21
<PAGE> 23
SCHEDULE II
NUMBER OF
---------
UNDERWRITER OFFERED SECURITIES
------------------
TO BE PURCHASED
---------------
-------------------
Total.......................... ===================
22
<PAGE> 24
ANNEX I
FORM OF COMFORT LETTER
(1) They are independent certified public accountants with
respect to the Corporation and its subsidiaries within the meaning
of the 1933 Act and the applicable published rules and regulations
thereunder;
(2) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if
applicable, prospective financial statements and/or pro forma
financial information) examined by them and included or
incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act or the 1934 Act,
as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial
information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of
the Corporation for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the
"Representatives");
(3) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
the Corporation for the five most recent fiscal years included in
the Prospectus and included or incorporated by reference in Item 6
of the Corporation's Annual Report on Form 10-K for the most recent
fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for such five fiscal years which were included or
incorporated by reference in the Corporation's Annual Reports on
Form 10-K for such fiscal years;
(4) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the
Corporation and its subsidiaries, inspection of the minute books of
the Corporation since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Corporation and its subsidiaries
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(a) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference
in the Corporation's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the 1934 Act as it applies to
Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets and
<PAGE> 25
consolidated statements of cash flows included or incorporated
by reference in the Corporation's Annual Report on Form 10-K
for the most recent fiscal year;
(b) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Corporation's Annual Report on Form 10-K for the most
recent fiscal year;
(c) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
Clause (a) and any unaudited income statement data and balance
sheet items included in the Prospectus and referred to in
Clause (b) were not determined on a basis substantially
consistent with the basis for the audited financial statements
included or incorporated by reference in the Corporation's
Annual Report on Form 10-K for the most recent fiscal year;
(d) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(e) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
capital stock or any increase in the consolidated long-term
debt (including subordinated notes) of the Corporation and its
subsidiaries or in other items specified by the
Representatives, or any decreases in the shareholders' equity
of the Corporation and its subsidiaries or in other items
specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(f) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (e)
there were any decreases in net interest income, non-interest
income or income before income taxes, or in the total amount
of net income or the per share (primary and fully diluted)
amount of net income, of the Corporation and its subsidiaries,
or in income before income taxes and equity in undistributed
earnings of subsidiaries of the Corporation, or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified
2
<PAGE> 26
by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(5) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries
and other procedures referred to in paragraphs (3) and (4) above,
they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which
are derived from the general accounting records of the Corporation
and its subsidiaries, which appear in the Prospectus or in Part II
of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and
have compared certain of such amounts, percentages and financial
information with the accounting records of the Corporation and its
subsidiaries and have found them to be in agreement.
3
<PAGE> 1
EXHIBIT 1(b)
BOATMEN'S BANCSHARES, INC.
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
----------------------
FORM OF UNDERWRITING AGREEMENT
----------------------
Date
<PAGE> 2
BOATMEN'S BANCSHARES, INC.
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
---------------
UNDERWRITING AGREEMENT
Date
To the Representatives
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Dear Sirs:
Boatmen's Bancshares, Inc., a Missouri corporation (the
"Corporation"), proposes to issue and sell to the underwriters
named in Schedule II hereto (the "Underwriters") for whom you are
acting as representatives (the "Representatives") the debt
securities or warrants representing rights to purchase debt
securities of the Corporation (the "Warrants") as are specified in
Schedule I hereto (the debt securities and Warrants so specified
being hereinafter referred to collectively as the "Offered
Securities") on the terms and conditions stated herein and in
Schedule I. The Offered Securities are to be sold to each
Underwriter, acting severally and not jointly, in the respective
principal amounts as are set forth in Schedule II opposite the name
of such Underwriter.
The Offered Securities will be issued under an indenture dated
as of ------------, 19--- [as amended by the following supplemental
indentures: ---------------] (the "Indenture") between the
Corporation and Chemical Bank, as Trustee (the "Trustee").
The Warrants will be evidenced by warrant certificates issued
by one or more warrant agents (collectively, the "Warrant Agent")
under one or more warrant agreements (collectively, the "Warrant
Agreement") between the Corporation and the Warrant Agent. The
Warrants will be deposited with the Warrant Agent under the Warrant
Agreement.
The Corporation has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on
Form S-3 (File No. ------------), including a combined prospectus,
relating to certain of its debt securities, preferred stock, common
stock, depositary shares and warrants (including the Offered
Securities) and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"). Such registration statement has been
declared effective by the Commission. A prospectus supplement
reflecting the terms of the Offered Securities, the terms of the
offering thereof and the other matters set forth therein has been
prepared and will be filed pursuant to
<PAGE> 3
Rule 424 under the 1933 Act.
Such prospectus supplement, in the form first filed after the date
hereof pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement". Such registration statement, as amended
at the date hereof, including the exhibits thereto and the
documents incorporated by reference therein, is herein called the
"Registration Statement", and the basic prospectus included therein
relating to all offerings of securities under the Registration
Statement (the "Basic Prospectus"), as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except
that, if such Basic Prospectus is amended or supplemented on or
prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the
Basic Prospectus as so amended or supplemented and as supplemented
by the Prospectus Supplement, in either case including the
documents filed by the Corporation with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
that are incorporated by reference therein.
I.
The Corporation represents and warrants to each of the Under-
writers that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) The Corporation has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Missouri, is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended, and the
rules and regulations of the Board of Governors of the Federal
Reserve System (the "Board") thereunder, is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Corporation and its subsidiaries,
taken as a whole.
(c) Each subsidiary of the Corporation that is a bank has
been duly organized, is validly existing as a national banking
association in good standing under the laws of the United States or
as a bank in good standing under the laws of a state thereof, as
the case may be, and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Corporation and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Corporation that is not a bank has
been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing
2
<PAGE> 4
would not have a material adverse affect on the Corporation and
its subsidiaries, taken as a whole.
(e) The Corporation and its subsidiaries are in compliance in
all material respects with all applicable regulations of the Board,
the Office of the Comptroller of the Currency (the "OCC"), the
Federal Deposit Insurance Corporation (the "FDIC") and any state
bank regulatory authority with jurisdiction over any of the
Corporation's subsidiary banks, the failure to comply with which
would have a material adverse affect on the Corporation and its
subsidiaries, taken as a whole.
(f) All of the issued and outstanding capital stock of each
direct or indirect subsidiary of the Corporation has been duly and
validly issued and is fully paid and nonassessable (subject,
however, to the provisions of Section 55, Title 12, United States
Code) and (except for directors' qualifying shares and except for
minority interests not in excess of seven percent of the issued and
outstanding capital stock of Boatmen's Bank of Quincy and one
percent of the issued and outstanding capital stock of Boatmen's
Trust Company, Boatmen's Bank of Southern Missouri and Boatmen's
Bank of Sigourney (specify any other exceptions to 100% ownership)
all of such capital stock is owned, directly or indirectly, by the
Corporation, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(g) The authorized capital stock of the Corporation conforms
as to legal matters to the description thereof contained in the
Prospectus.
(h) All of the issued shares of capital stock of the
Corporation have been duly authorized and are validly issued, fully
paid and nonassessable.
(i) The Indenture, each supplement thereto, if any, to the
date hereof and the supplement thereto or board resolution (or
other instrument delivered pursuant to such board resolution)
setting forth the terms of the Offered Securities (the Indenture,
as so supplemented by such supplement or supplements and board
resolution (or other instrument delivered pursuant to such board
resolution) or supplemental indenture to be delivered pursuant to
Article Nine of the Indenture with respect to the Offered
Securities, being herein referred to as the "Designated Indenture")
have been duly authorized by the Corporation. The Indenture as
executed is substantially in the form filed as an exhibit to the
Registration Statement. The Designated Indenture, when duly
executed and delivered (to the extent required by the Indenture) by
the Corporation and the Trustee, will constitute a valid and
binding obligation of the Corporation, enforceable against the
Corporation in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law). The Designated
Indenture conforms as to legal matters to the description thereof
contained in the Prospectus.
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<PAGE> 5
(j) On the date hereof and on the Closing Date the Indenture
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act of 1939, as amended, and
the rules and regulations thereunder.
(k) The Offered Securities have been duly authorized by the
Corporation. When executed, authenticated, issued and delivered in
the manner provided for in the Designated Indenture and sold and
paid for as provided herein and in any Delayed Delivery Contracts
(as defined below), they will constitute valid and binding
obligations of the Corporation entitled to the benefits of the
Designated Indenture and enforceable against the Corporation in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). If Warrants are included in the
Offered Securities, upon due execution, countersignature and
delivery as provided for in the Warrant Agreement, the Warrants in
definitive form will constitute valid and legally binding
obligations of the Corporation and the Warrants may be exercised to
purchase debt securities of the Corporation in accordance with the
terms and conditions of the Warrant Agreement. The debt securities
of the Corporation initially issuable upon exercise of the Warrants
have been duly authorized and reserved for issuance upon such
exercise and, when so issued, will be valid and binding obligations
of the Corporation entitled to the benefits of the Designated
Indenture and enforceable against the Corporation in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Offered Securities conform as to legal
matters to the description thereof contained in the Prospectus.
(l) The Corporation has all necessary corporate power and
authority to execute and deliver this Agreement and any Warrant
Agreement, and to consummate the transactions contemplated thereby
and perform its obligations thereunder; prior to the Closing Date
(as defined below), any Warrant Agreement will have been duly
authorized, executed and delivered by the Corporation, will be
substantially in the form theretofore delivered to the Underwriters
and assuming due authorization, execution and delivery by the other
parties thereto, will constitute a valid and legally binding
obligation of the Corporation, enforceable against the Corporation
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless or whether enforcement is considered in a proceeding in
equity or at law); and any Warrant Agreement conforms as to legal
matters to the description thereof contained in the Prospectus.
(m) In the event that any of the Offered Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized by the
Corporation and, when executed and delivered on behalf of the
Corporation and duly
4
<PAGE> 6
authorized, executed and delivered on behalf
of the purchaser thereunder, will constitute a valid and binding
obligation of the Corporation, enforceable against the Corporation
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(n) This Agreement has been duly authorized, executed and
delivered by the Corporation.
(o) The issuance, sale and delivery of any of the Offered
Securities, the execution, delivery, filing and performance of this
Agreement, any Warrant Agreement or Delayed Delivery Contract, the
consummation of the transactions contemplated herein and compliance
with the terms of this Agreement, and any Warrant Agreement or
Delayed Delivery Contract and the Designated Indenture do not and
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the charter documents
or by-laws of the Corporation or any of its subsidiaries or any
agreement or other instrument binding upon the Corporation or any
of its subsidiaries that is material to the Corporation and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Corporation or any subsidiary, and no consent, approval or
authorization or order of, or qualification with, any governmental
body or agency (including, without limitation, the Board, the OCC
and the FDIC) is required for the performance by the Corporation of
its obligations under this Agreement, and any Warrant Agreement or
Delayed Delivery Contract and the Designated Indenture, except such
as are specified and have been obtained and such as may be required
by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
(p) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Corporation and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement.
(q) There is no legal or governmental proceeding pending or
threatened to which the Corporation or any of its subsidiaries is,
or is threatened to be, a party or to which any of properties of
the Corporation or any of its subsidiaries is, or is threatened to
be, subject that is required to be described in the Registration
Statement or the Prospectus and is not so described or any statute,
regulation, contract or other document that is required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required.
(r) Each Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act and the rules and
regulations of the Commission thereunder.
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<PAGE> 7
(s) (i) Each document, if any, filed or to be filed pursuant
to the 1934 Act, and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with
the 1934 Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not
contain, any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects
with the 1933 Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Basic Prospectus does not
contain and the Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(t) The Corporation has complied to the extent necessary with
all provisions of Section 517.075, Florida Statutes.
The foregoing representations and warranties do not apply to
statements or omissions (i) in the Registration Statement, the
Basic Prospectus or the Prospectus based upon information furnished
to the Corporation in writing by any Underwriter expressly for use
therein or (ii) in the Statement of Eligibility and Qualification
on Form T-1 under the Trust Indenture Act of 1939, as amended, of
the Trustee under the Indenture.
II.
Subject to the terms and conditions, and in reliance upon the
representations and warranties, set forth herein or incorporated by
reference herein, the Corporation hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the
respective principal amounts of such Offered Securities set forth
opposite their names on Schedule II hereto at --% of the principal
amount of such Offered Securities set forth opposite their names on
Schedule II plus accrued interest, if any, from -----------, 199-
to the date of payment and delivery.
Between the date hereof and the Closing Date, or such other
date as may be specified in Schedule I, the Corporation will not,
without your prior consent, offer or sell, or enter into any
agreement to sell, any debt securities or Warrants (other than the
Offered Securities) in any public offering.
6
<PAGE> 8
III.
The Corporation is advised by the Underwriters that the
Underwriters propose to make a public offering of their respective
portions of the Offered Securities as soon after this Agreement is
entered into as in the Underwriters' judgment is advisable. The
terms of the public offering of the Offered Securities are set
forth in the Prospectus.
If specified in Schedule I, the Underwriters may solicit
offers to purchase Offered Securities from the Corporation pursuant
to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Annex II hereto, with such changes
therein as the Corporation may approve. Any Delayed Delivery
Contracts are to be with institutional investors of the types set
forth in the Prospectus. At the Closing Date, the Corporation will
enter into Delayed Delivery Contracts (for the minimum principal
amount of Offered Securities per Delayed Delivery Contract
specified in Schedule I) with all purchasers proposed by the
Underwriters and previously approved by the Corporation as provided
below, but not for an aggregate principal amount of Offered
Securities less than or greater than the minimum and maximum
aggregate principal amounts specified in Schedule I. The
Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contract.
IV.
Payment of the purchase price for, and delivery of, the
Offered Securities shall be made at the date, time and location
specified in Schedule I, or at such other location as shall be
agreed upon by the Corporation and you (such date and time of
payment and delivery being herein called the "Closing Date").
Unless otherwise specified in Schedule I, payment shall be made to
the Corporation by certified or official bank check or checks in
New York Clearing House funds payable to the order of the
Corporation.
One or more global securities ("Global Securities")
representing the Offered Securities will be registered in the name
of the Depository Trust Company (the "Depositary") or a nominee
thereof and will be deposited with or on behalf of the Depositary
for the respective accounts of the Depositary's participants as
designated by the several Underwriters against payment of the
purchase price thereof by the several Underwriters. The
Corporation agrees to have the Global Securities available for
inspection and checking by the Underwriters in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing
Date.
If Warrants are included in the Offered Securities, a global
warrant to be deposited with the Warrant Agent at the Closing Date
for the respective accounts of the several Underwriters.
7
<PAGE> 9
V.
The obligations of the Corporation and the several obligations
of the Underwriters hereunder are subject to the condition that the
Prospectus shall have been filed with the Commission pursuant to
Rule 424(b), no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable
satisfaction.
The several obligations of the Underwriters hereunder are
subject to the following further conditions:
(a) There shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Corporation and its subsidiaries, taken as a whole, from
that set forth in the Registration Statement, that, in your
reasonable judgment, is material and adverse and that makes it, in
your reasonable judgment, inadvisable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive
officer of the Corporation, to the effect set forth in clause (a)
above and to the effect that the representations and warranties of
the Corporation contained in this Agreement shall be true and
correct as of the Closing Date and the Corporation shall have
performed all of its obligations to be performed hereunder on or
prior to the Closing Date. The officer signing and delivering such
certificate may rely upon the best of his knowledge as to
proceedings threatened.
(c) You shall have received on the Closing Date an opinion of
Lewis, Rice & Fingersh, independent counsel for the Corporation,
dated the Closing Date, to the effect that
(i) the Corporation has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Missouri, is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as
amended, and the rules and regulations of the Board thereunder
and is not required or licensed to do business as a foreign
corporation in any jurisdiction;
(ii) each of The Boatmen's National Bank of St. Louis,
Boatmen's First National Bank of Kansas City, Boatmen's
Oklahoma, Inc., Boatmen's Sunwest, Inc. and Boatmen's
Bancshares of Iowa, Inc. and any other subsidiary to be
specified has been duly organized, is validly existing as a
national banking association in good standing under the laws
of the United States or as a corporation in good standing
under the laws of a state thereof, as the case may be, and is
not required or licensed to do business as a foreign
corporation in any jurisdiction;
8
<PAGE> 10
(iii) Boatmen's Trust Company has been duly organized,
is validly existing as a trust company in good standing under
the laws of a state thereof and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Corporation
and its subsidiaries, taken as a whole;
(iv) the authorized capital stock of the Corporation
conforms as to legal matters to the description thereof
contained in the Prospectus;
(v) to the knowledge of such counsel, the Corporation
and The Boatmen's National Bank of St. Louis, Boatmen's First
National Bank of Kansas City, Boatmen's Oklahoma, Inc.,
Boatmen's Sunwest, Inc., Boatmen's Bancshares of Iowa, Inc.
and Boatmen's Trust Company (the "Subsidiary Banks") are in
compliance in all material respects with all applicable
regulations of the Board, the OCC, the FDIC and any state bank
regulatory authority with jurisdiction over any of the
Subsidiary Banks;
(vi) all of the issued and outstanding capital stock of
the Subsidiary Banks has been duly and validly issued and is
fully paid and nonassessable (subject, however, to the
provisions of Section 55, Title 12, United States Code) and
(except for directors' qualifying shares and except for
minority interests not in excess of one percent of the issued
and outstanding capital stock of Boatmen's Trust Company (and
any other Subsidiary Bank less than 100% owned) all of the
capital stock of the Subsidiary Banks is owned, directly or
indirectly, by the Corporation free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity;
(vii) the Designated Indenture, as amended, has been
duly authorized, executed and delivered by the Corporation and
is a valid and binding agreement of the Corporation,
enforceable against the Corporation in accordance with its
terms except as (A) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting
enforcement of creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability
(regardless of whether enforcement is considered in a
proceeding in equity or at law); the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended;
(viii) the Offered Securities have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Designated Indenture and when delivered to
and paid for by the Underwriters in accordance with this
Agreement, will be valid and binding obligations of the
Corporation, enforceable against the Corporation in accordance
with their terms and will be entitled to the benefits of the
Designated Indenture, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws
affecting enforcement of creditors' rights generally and
(B) rights of acceleration and the
9
<PAGE> 11
availability of equitable
remedies may be limited by equitable principles of general
applicability (regardless of whether enforcement is considered
in a proceeding in equity or at law);
(ix) the Corporation has all necessary corporate power
and authority to execute and deliver this Agreement, and to
consummate the transaction contemplated hereby and perform its
obligations hereunder;
(x) no authorization, approval, consent or license of
any regulatory body or authority (other than under the 1933
Act and the securities or Blue Sky laws of the various states)
and no approval of the stockholders of the Corporation is
required for the valid authorization, issuance, sale and
delivery of the Offered Securities by the Corporation, or for
the execution, delivery or performance of this Agreement and
the Indenture, or, if so required, all such authorizations,
approvals, consents and licenses, specifying the same, have
been obtained and are, to the best of such counsel's
knowledge, in full force and effect;
(xi) the execution and delivery of, and the performance
of its obligations under, this Agreement, the Indenture and
the Offered Securities will not contravene any provision of
applicable law or the Restated Articles of Incorporation or
By-laws of the Corporation or any of its subsidiaries or, to
the knowledge of such counsel, any agreement or other
instrument binding upon the Corporation or any of its
subsidiaries that is material to the Corporation and its
subsidiaries taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Corporation or any of its subsidiaries;
(xii) the statements (1) in the Basic Prospectus under
"Description of Debt Securities", "Description of Warrants"
and "Plan of Distribution," (2) in the Prospectus Supplement
under "------------," (3) under the captions "Regulation and
Supervision" and "Legal Proceedings" in the Corporation's
latest Annual Report on Form 10-K that is incorporated by
reference in the Prospectus and (4) in the Registration
Statement in Item 15, insofar as such statements constitute a
summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(xiii) after due inquiry, such counsel does not know of
any legal or governmental proceeding pending or threatened to
which the Corporation or any of its subsidiaries is a party or
to which any of the properties of the Corporation or any of
its subsidiaries is subject that is required to be described
in the Registration Statement or the Prospectus and is not so
described or of any statute, regulation, contract or other
document that is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that is not described or filed as
required; and
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<PAGE> 12
(xiv) such counsel (1) is of the opinion that each
document filed pursuant to the 1934 Act and incorporated by
reference in the Registration Statement and the Prospectus
(except for financial statements and schedules as to which
such counsel need not express any opinion) complied when so
filed as to form in all material respects with the 1934 Act
and the applicable rules and regulations of the Commission
thereunder, (2) is of the opinion that the Registration
Statement and the Prospectus and any supplements or amendments
thereto (except for financial statements and schedules as to
which such counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and the rules
and regulations of the Commission thereunder and (3) believes
that (except for financial statements and schedules as to
which such counsel need not express any belief) the
Registration Statement and the Basic Prospectus included
therein at the time the Registration Statement became
effective did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and the Prospectus, as amended or supplemented, if
applicable, does not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
With respect to the matters set forth in subparagraph (xiv) of
paragraph (c) above, Lewis, Rice & Fingersh may state that
(1) their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents
thereof, but are without independent check or verification except
as specified, and (2) they are not passing upon the adequacy or
accuracy of the derivation or compilation from the Corporation's
financial statements or financial records of any financial data.
(d) ------------, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Closing Date,
with respect to this Agreement, the Offered Securities, the Warrant
Agreement, the Registration Statement, the Prospectus, and other
related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters. In
rendering its opinion, counsel for the Underwriters may rely upon
the opinion of Lewis, Rice & Fingersh referred to in paragraph (c)
above as to all matters of Missouri law.
(e) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Corporation's debt securities
or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Corporation's debt securities or preferred
stock;
(f) Prior to the Closing Date, the Corporation shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
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<PAGE> 13
(g) You shall have received on the date of this Agreement a
letter dated such date and also on the Closing Date a letter dated
the Closing Date, in each case in form and substance satisfactory
to you, from Ernst & Young, independent public accountants,
containing statements and information covering the matters set
forth in Annex I and the additional matters set forth on
Schedule I.
VI.
In further consideration of the agreements of the Underwriters
herein contained, the Corporation covenants as follows:
(a) To furnish you, without charge, one manually signed copy
of the Registration Statement (including exhibits thereto and
documents incorporated by reference) and to each other Underwriter
a conformed copy of the Registration Statement (without exhibits
thereto but including documents incorporated by reference).
(b) To prepare the Prospectus Supplement in a form approved
by you and to file such Prospectus pursuant to Rule 424(b) under
the 1933 Act not later than the Commission's close of business on
the second business day following the execution and delivery of
this Agreement; to make no further amendment or any supplement to
the Registration Statement or Prospectus Supplement with respect to
the Offered Securities prior to the Closing Date which shall be
disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any Prospectus Supplement or any amended
Prospectus relating to the Offered Securities has been filed and to
furnish you with copies thereof; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
preliminary prospectus or prospectus, of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any preliminary prospectus or prospectus or suspending
any such qualification, to use promptly its best efforts to obtain
its withdrawal.
(c) Promptly from time to time to take such action as you may
reasonably request to qualify the Offered Securities for offering
and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Offered Securities, provided that in connection therewith the
Corporation shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
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<PAGE> 14
(d) To furnish the Underwriters with copies of the Prospectus
in such quantities as you may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time prior
to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Offered
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period to amend
or supplement the Prospectus in order to comply with the 1933 Act,
to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and
in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Offered Securities at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3)
of the 1933 Act;
(e) To make generally available to the Corporation's security
holders as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the 1933 Act and the rules and
regulations of the Commission thereunder.
(f) To pay or cause to be paid the fees, disbursements and
expenses of the Corporation's counsel and accountants in connection
with the registration of the Offered Securities under the 1933 Act
and all other expenses in connection with the preparation, printing
and filing of the Registration Statement and the Prospectus and
amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; the cost of
printing or producing this Agreement, any Blue Sky or legal
investment memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Offered Securities;
all expenses in connection with the qualification of the Offered
Securities for offering and sale under state securities laws as
provided herein, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; any fees
charged by securities rating agencies for rating the Offered
Securities; any filing fees incident to any required review by the
National Association of Securities Dealers, Inc.; and all other
costs or expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided in this
paragraph. It is understood, however, that, except as provided in
this paragraph, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes
on resale of any of the Offered Securities by them, and any
advertising expenses connected with any offers they may make.
13
<PAGE> 15
VII.
(a) The Corporation will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the
Corporation shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement made in reliance upon and in conformity with written
information furnished to the Corporation by any Underwriter through
you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Corporation against any losses, claims, damages or liabilities to
which the Corporation may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement
or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in any preliminary prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Corporation
by such Underwriter through you expressly for use therein; and will
reimburse the Corporation for any legal or other expenses
reasonably incurred by the Corporation in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with
14
<PAGE> 16
counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Article VII
is unavailable to or insufficient to hold harmless an indemnified
party under paragraph (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Corporation on the one hand
and the Underwriters on the other from the offering of the Offered
Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice required
under paragraph (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Corporation on
the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits
received by the Corporation on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received
by the Corporation bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth
in the table on the cover page of the Prospectus Supplement. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Corporation on
the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Corporation
and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this paragraph (d) were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to
above in this paragraph (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this paragraph (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public exceeds the amount
of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to
15
<PAGE> 17
contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this paragraph (d) to contribute are several in
proportion to their respective underwriting obligations and not
joint.
(e) The obligations of the Corporation under this Article VII
shall be in addition to any liability which the Corporation may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Article VII shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer
and director of the Corporation and to each person, if any, who
controls the Corporation within the meaning of the 1933 Act.
VIII.
This Agreement shall be subject to termination in your
absolute discretion, by notice given to the Corporation, if
(a) after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of the Corporation shall have
been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New
York shall have been declared by either federal or New York State
authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your reasonable judgment, is material
and adverse and (b) in the case of any of the events specified in
clause (a)(iv), such event singly or together with any other such
event makes it, in your reasonable judgment, inadvisable to market
the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
IX.
(a) If any Underwriter shall default in its obligation to
purchase the Offered Securities which it has agreed to purchase
hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such
Offered Securities on the terms contained herein. If within 36
hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Offered Securities, then the
Corporation shall be entitled to a further period of 36 hours
within which to procure another party or other parties satisfactory
to the Representatives to purchase such Offered Securities on such
terms. In the event that, within the respective prescribed period,
the Representatives notify the Corporation that they have so
arranged for the purchase of such Offered Securities or the
Corporation notifies the Representative that it has so arranged for
the purchase of such Offered Securities, the Representatives or the
Corporation shall have the right to postpone the Closing Date for
a period
16
<PAGE> 18
of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement
or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Corporation agrees to file
promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person
had originally been a party hereto.
(b) If, after giving effect to any arrangements for the
purchase of the Offered Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Corporation as provided
in paragraph (a) above, the aggregate offering price of the Offered
Securities that remain unpurchased does not exceed one-eleventh of
the aggregate offering price of the Offered Securities, then the
Corporation shall have the right to require each non-defaulting
Underwriter to purchase the number of the Offered Securities that
such Underwriter agreed to purchase hereunder and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of the Offered Securities that such
Underwriter agreed to purchase hereunder) of the Offered Securities
of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Offered Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Corporation as provided
in paragraph (a) above, the aggregate offering price of the Offered
Securities which remains unpurchased exceeds one-eleventh of the
aggregate offering price of the Offered Securities, as referred to
in paragraph (b) above, or if the Corporation shall not exercise
the right described in paragraph (b) above to require non-
defaulting Underwriters to purchase the Offered Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall
thereupon terminate, without liability on the part of any non-
defaulting Underwriter or the Corporation, except for the expenses
to be borne by the Corporation and the Underwriters as provided
herein and the indemnity and contribution agreements contained
herein; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
X.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the
Corporation to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Corporation
shall be unable to perform its obligations under this Agreement,
the Corporation will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
17
<PAGE> 19
The respective indemnities, agreements, representations,
warranties and other statements of the Corporation and the several
Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or
the Corporation, or any officer or director or controlling person
of the Corporation, and shall survive delivery of and payment for
the Offered Securities.
This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Corporation and, to the extent
provided in Article VII and the preceding paragraph, the officers
and directors of the Corporation and each person who controls the
Corporation or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Offered Securities from any
Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf
of any Underwriter made or given by you jointly or by ------------
on behalf of you as the representatives.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered
or sent by mail, telex or facsimile transmission to you as the
representatives in care of (Name and address of firm) Attention:
- ------------; and if to the Corporation shall be delivered or sent
by mail to the address of the Corporation set forth in the
Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to paragraph (c) of
Article VII hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth
in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Corporation by
you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
This Agreement may be signed in two or more counterparts, each
of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18
<PAGE> 20
If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding
agreement between each of the Underwriters and the Corporation. It
is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be
submitted to the Corporation for examination upon request, but
without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
BOATMEN'S BANCSHARES, INC.
By ------------------------------------
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I
hereto
By: Name of Representatives
By: ---------------------------------------------
Acting severally on behalf of themselves and
the several Underwriters named in Schedule II
hereto.
By: ---------------------------------------------
19
<PAGE> 21
SCHEDULE I
Underwriting Agreement dated ------------, 199--.
Registration Statement No. 33-----------.
Representatives: -----------------------------------------------
-----------------------------------------------
Title, Purchase Price and Description of Securities:
Title: ----------------------------------------------------
Purchase Price (include type of funds): -------------------
------------------------
------------------------
Description: ----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
Closing Date and Location:
Date of Closing: ------------------------------------------
Time of Closing: ------------------------------------------
Location of Closing: --------------------------------------
--------------------------------------
20
<PAGE> 22
SCHEDULE I (CON'T)
The following terms and conditions supplement the provisions of the
foregoing Underwriting Agreement and, to the extent inconsistent
therewith, replace the provisions of the foregoing Underwriting
Agreement:
The following additional items are to be covered by the letter from
Ernst & Young delivered pursuant to paragraph (g) of Article V of
the foregoing Underwriting Agreement:
21
<PAGE> 23
SCHEDULE II
$ AMOUNT OF
-----------
UNDERWRITER OFFERED SECURITIES
------------------
TO BE PURCHASED
---------------
-------------------
Total.......................... ===================
22
<PAGE> 24
ANNEX I
Form of Comfort Letter
(1) They are independent certified public accountants with
respect to the Corporation and its subsidiaries within the meaning
of the 1933 Act and the applicable published rules and regulations
thereunder;
(2) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if
applicable, prospective financial statements and/or pro forma
financial information) examined by them and included or
incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act or the 1934 Act,
as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial
information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of
the Corporation for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the
"Representatives");
(3) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
the Corporation for the five most recent fiscal years included in
the Prospectus and included or incorporated by reference in Item 6
of the Corporation's Annual Report on Form 10-K for the most recent
fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for such five fiscal years which were included or
incorporated by reference in the Corporation's Annual Reports on
Form 10-K for such fiscal years;
(4) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the
Corporation and its subsidiaries, inspection of the minute books of
the Corporation since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Corporation and its subsidiaries
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(a) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference
in the Corporation's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the 1934 Act as it applies to
Form 10-Q and the
<PAGE> 25
related published rules and regulations
thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated
by reference in the Corporation's Annual Report on Form 10-K
for the most recent fiscal year;
(b) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Corporation's Annual Report on Form 10-K for the most
recent fiscal year;
(c) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
Clause (a) and any unaudited income statement data and balance
sheet items included in the Prospectus and referred to in
Clause (b) were not determined on a basis substantially
consistent with the basis for the audited financial statements
included or incorporated by reference in the Corporation's
Annual Report on Form 10-K for the most recent fiscal year;
(d) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(e) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
capital stock or any increase in the consolidated long-term
debt (including subordinated notes) of the Corporation and its
subsidiaries or in other items specified by the
Representatives, or any decreases in the shareholders' equity
of the Corporation and its subsidiaries or in other items
specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(f) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (e)
there were any decreases in net interest income, non-interest
income or income before income taxes, or in the total amount
of net income or the per share (primary and fully diluted)
amount of net income, of the Corporation and its subsidiaries,
or in income before income taxes and equity in undistributed
earnings of subsidiaries of the
2
<PAGE> 26
Corporation, or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(5) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries
and other procedures referred to in paragraphs (3) and (4) above,
they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which
are derived from the general accounting records of the Corporation
and its subsidiaries, which appear in the Prospectus or in Part II
of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and
have compared certain of such amounts, percentages and financial
information with the accounting records of the Corporation and its
subsidiaries and have found them to be in agreement.
3
<PAGE> 27
ANNEX II
FORM OF DELAYED DELIVERY CONTRACT
Boatmen's Bancshares, Inc.
One Boatmen's Plaza
800 Market Street
St. Louis, Missouri 63101
Dear Sirs:
The undersigned hereby agrees to purchase from Boatmen's
Bancshares, Inc., a Missouri corporation (the "Corporation"), and
the Corporation agrees to sell to the undersigned on ------------,
19--- the ("Delivery Date"), ------------ principal amount of the
Corporation's ---------% Debt Securities due ------------, ----
(the "Offered Securities"), offered by the Corporation's Prospectus
dated ------------, receipt of which is hereby acknowledged, at a
purchase price of ---------% of the principal amount thereof at the
rate borne by the Offered Securities from ------------, 19-- to the
Delivery Date, and on the further terms and conditions set forth in
this contract.
Payment for the Offered Securities which the undersigned has
agreed to purchase shall be made to the Corporation or its order by
certified or official bank check in New York Clearing House or similar
next day funds, at the offices of ----------------------------,
New York, New York at --------- a.m., New York City time, on the
Delivery Date (or in such other funds and/or at such other place
as the Corporation and the undersigned may agree upon in writing),
upon delivery to the undersigned of the Offered Securities to
be purchased by the undersigned and in such authorized denominations
and registered in such names as the undersigned may request
in writing addressed to the Corporation not less than three
business days prior to the Delivery Date.
The obligations of the Corporation to sell and of the
undersigned to take delivery of and make payment for the Offered
Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of the Offered Securities to be
made by the undersigned shall not on the Delivery Date be
prohibited under the laws of any jurisdiction to which the
undersigned is subject and which govern such investment and (2) the
Corporation, on or before ------------, 19--, shall have sold to
the Underwriters of the Offered Securities (the "Underwriters")
such principal amount of the Offered Securities as is to be sold to
them pursuant to the Underwriting Agreement dated the date hereof
between the Corporation and the Underwriters. The obligation of
the undersigned to take delivery of and make payment for the
Offered Securities shall not be affected by the failure of any
Underwriter or other purchaser to take delivery of and make payment
for the Offered Securities pursuant to other contracts similar to
this contract.
Promptly after completion of the sale to the Underwriters, the
Corporation will mail or deliver to the undersigned at its address
set forth below a notice to such effect, accompanied by
<PAGE> 28
a copy of the opinion of counsel for the Corporation delivered
to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the Corporation that (1) its investment in the Offered
Securities is not, as of the date hereof, prohibited under the laws
of any jurisdiction to which the undersigned is subject and which
governed such investment, (2) all necessary corporate action for
the due execution and delivery of this contract and the payment for
and purchase of the Offered Securities has been taken by it and no
further authorization or approval of any governmental or other
regulatory authority is required for such execution, delivery,
payment or purchase and (3) upon the acceptance hereof by the
Corporation and the mailing or delivery of a copy hereof as
provided below, this contract will constitute a valid and binding
agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of
the other.
It is understood that the Corporation will not accept Delayed
Delivery Contracts for an aggregate principal amount of the Offered
Securities in excess of $------------ and that the acceptance of
any Delayed Delivery Contract is in the Corporation's sole
discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this contract is acceptable to
the Corporation, it is requested that the Corporation sign the form
of acceptance on a copy hereof and mail or deliver a signed copy
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Corporation and the
undersigned when such copy is so mailed or delivered.
2
<PAGE> 29
This contract shall be governed by the laws of the State of
New York.
Yours very truly,
-------------------------------------
(Name of Purchaser)
By ---------------------------------
(Title)
-------------------------------------
-------------------------------------
(Address)
Accepted as of the date first
above written:
BOATMEN'S BANCSHARES, INC.
By ----------------------------
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Name Telephone No.
(including Area Code)
3
<PAGE> 1
EXHIBIT 4(a)
BOATMEN'S BANCSHARES, INC.
DEBT SECURITIES
--------------------------
FORM OF SENIOR DEBT INDENTURE
--------------------------
<PAGE> 2
BOATMEN'S BANCSHARES, INC.
and
CHEMICAL BANK,
Trustee
--------------------
INDENTURE
Dated as of -----------, 199-
-------------------
DEBT SECURITIES
<PAGE> 3
<TABLE>
Boatmen's Bancshares, Inc.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ------------, 199-
------------------------
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- --------------- -------------
<S> <C> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a). . . . . . . . . . . . . . . . . . 613
(b). . . . . . . . . . . . . . . . . . 613
Section 312 (a). . . . . . . . . . . . . . . . . . 701, 702(a)
(b). . . . . . . . . . . . . . . . . . 702(b)
(c). . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a). . . . . . . . . . . . . . . . . . 703(a)
(b). . . . . . . . . . . . . . . . . . 703(b)
(c). . . . . . . . . . . . . . . . . . 703(c)
(d). . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a). . . . . . . . . . . . . . . . . . 704
(b). . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . . 103
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . 103
Section 315 (a). . . . . . . . . . . . . . . . . . 601(a)
(b). . . . . . . . . . . . . . . . . . 602, 703(a)
(c). . . . . . . . . . . . . . . . . . 601(b)
(d). . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . 601(c)(3)
(e). . . . . . . . . . . . . . . . . . 514
Section 316 (a)(1)(A). . . . . . . . . . . . . . . 502, 512
(a)(1)(B). . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . 1003
Section 318 (a). . . . . . . . . . . . . . . . . . 108
- ------------------
<FN>
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
</TABLE>
<PAGE> 4
<TABLE>
TABLE OF CONTENTS
<S> <C>
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request and Company Order. . . . . . . . . . . . . . . . 2
Consolidated Tangible Assets . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . . 4
Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . . . 4
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 5
Principal Subsidiary . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . . 6
i
<PAGE> 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 6
Registered Security. . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . . 6
Required Currency. . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . . . . . 6
Special Record Date. . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . 7
United States. . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations. . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . 7
Wholly Owned Subsidiary. . . . . . . . . . . . . . . . . . . . . 7
Yield to Maturity. . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . . . . . . . . 8
SECTION 103. Compliance Certificates and Opinions. . . . . . . . . 8
SECTION 104. Form of Documents Delivered to Trustee. . . . . . . . 9
SECTION 105. Acts of Holders. . . . . . . . . . . . . . . . . . . . 9
SECTION 106. Notices, Etc., to Trustee and Company. . . . . . . . . 11
SECTION 107. Notice to Holders; Waiver. . . . . . . . . . . . . . . 11
SECTION 108. Conflict With Trust Indenture Act. . . . . . . . . . . 11
SECTION 109. Effect of Headings and Table of Contents.. . . . . . . 12
SECTION 110. Successors and Assigns. . . . . . . . . . . . . . . . 12
SECTION 111. Separability Clause. . . . . . . . . . . . . . . . . . 12
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . . . 12
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . . . 12
SECTION 114. Legal Holidays. . . . . . . . . . . . . . . . . . . . 12
SECTION 115. Corporate Obligation. . . . . . . . . . . . . . . . . 12
SECTION 116. Business Day Certificate.. . . . . . . . . . . . . . . 13
ii
<PAGE> 6
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . . 14
SECTION 203. Securities in Global Form. . . . . . . . . . . . . . . 14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . 15
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . 17
SECTION 303. Execution, Authentication, Delivery and Dating. . . . 17
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . 22
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . 22
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . 24
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . 24
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . 24
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . 24
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . 26
SECTION 403. Discharge of Liability on Securities of Any
Series. . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 404. Reinstatement. . . . . . . . . . . . . . . . . . . . . 27
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . 27
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . . 30
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . 31
iii
<PAGE> 7
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities. . . . . . . . . . . . . . . . . . . . . 32
SECTION 506. Application of Money Collected. . . . . . . . . . . . 32
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . 33
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . . . . 33
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . 34
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . 34
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . 34
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . 34
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . 35
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . 35
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . . . 36
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . 36
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . 37
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . 38
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . . 39
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . 39
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . 39
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . 39
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . 40
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . 41
SECTION 610. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . 42
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . . . . . 43
SECTION 613. Preferential Collection of Claims Against
Company. . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . 44
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders. . . . . . . . . . . . . . . . . . . . . . 46
iv
<PAGE> 8
SECTION 702. Preservation of Information; Communication to
Holders. . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . 47
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . 47
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 802. Successor Person Substituted. . . . . . . . . . . . . 48
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . . . . . . 49
SECTION 902. Supplemental Indentures With Consent of
Holders. . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . 51
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . 51
SECTION 905. Conformity With Trust Indenture Act. . . . . . . . . . 51
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . 52
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . 52
SECTION 1003. Money for Securities Payments to be Held in Trust. . 52
SECTION 1004. Existence. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1005. Maintenance of Properties. . . . . . . . . . . . . . 54
SECTION 1006. Payment of Taxes. . . . . . . . . . . . . . . . . . . 54
SECTION 1007. Liens. . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1008. Statement by Officers as to Default. . . . . . . . . 56
SECTION 1009. Waiver of Certain Covenants. . . . . . . . . . . . . 56
SECTION 1010. Additional Amounts. . . . . . . . . . . . . . . . . . 57
v
<PAGE> 9
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . 57
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . 57
SECTION 1103. Selection by Trustee of Securities to be
Redeemed. . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . 58
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . 59
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . 59
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . 59
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . 60
SECTION 1202. Satisfaction of Sinking Fund Payment
Otherwise Than With Cash. . . . . . . . . . . . . . . 60
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . 60
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called. . . . . . 61
SECTION 1302. Call, Notice and Place of Meetings. . . . . . . . . . 61
SECTION 1303. Persons Entitled to Vote at Meetings. . . . . . . . . 61
SECTION 1304. Quorum; Action. . . . . . . . . . . . . . . . . . . . 62
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . . . . . . 62
SECTION 1306. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . . . . . . . 63
- ------------------
<FN>
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
</TABLE>
vi
<PAGE> 10
INDENTURE, dated as of ---------------, 199-, between BOATMEN'S
BANCSHARES, INC., a corporation duly organized and existing under the laws
of the State of Missouri (herein called the "Company"), having its
principal office at One Boatmen's Plaza, 800 Market Street, St. Louis,
Missouri 63101, and CHEMICAL BANK, a corporation duly organized and
existing under the laws of the State of New York, as Trustee (herein called
the "Trustee"), the office of the Trustee at which at the date hereof its
corporate trust business is principally administered being 450 West 33rd
Street, New York, New York 10001.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined), it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation; and
(3) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
<PAGE> 11
Certain terms, used principally in Article Six, are defined in Section 102.
"Act", when used with respect to any Holder, has the meaning specified
in Section 105.
"Additional Amounts" means any additional amounts that are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein or pursuant thereto, to be paid by the Company with
respect to certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person, directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities by
contract or otherwise; and the terms "controlling" and "controlled" have
means correlative to the foregoing.
"Authenticating Agent" means any Person, which may include the Company,
authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
day of such certification, and delivered to the Trustee.
"Business Day", means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of St.
Louis or The City of New York are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its
2
<PAGE> 12
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Tangible Assets" means the total amount of assets of the
Company and its Subsidiaries on a consolidated basis, including the equity
in Subsidiaries that are not Wholly-Owned Subsidiaries (less applicable
reserves and other properly deductible items), after deducting therefrom
all goodwill and other like intangible assets, determined in accordance
with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof
is that indicated in the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a global Security, the Person designated
as Depositary by the Company pursuant to Section 301 until a successor
Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" shall mean or include each
Person who is then a Depositary hereunder, and if at any time there is more
than one such person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of
that series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" has the meaning specified in Section 302.
"Holder", means the Person in whose name a Security is registered in
the Security Register.
"Indebtedness", as applied to any Person, means all indebtedness,
whether or not represented by bonds, debentures, notes or other securities,
created or assumed by such Person for the repayment of money borrowed, and
obligations, computed in accordance with generally accepted accounting
principles, as lessee under leases that should be, in accordance with
generally accepted accounting principles, recorded as capital leases. All
Indebtedness secured by a lien upon property owned by the Company or any
Subsidiary and upon which Indebtedness such Person customarily pays
interest, although such Person has not assumed or become liable for the
payment of such Indebtedness, shall for all purposes hereof be deemed to
be Indebtedness of such Person. All Indebtedness of others guaranteed as
to payment of principal by such Person
3
<PAGE> 13
or in effect guaranteed by such Person through a contingent agreement to
purchase such Indebtedness shall for all purposes hereof be deemed to be
Indebtedness of such Person.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 506.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, the Controller, the Secretary or an
Assistant Treasurer, Assistant Controller or Assistant Secretary of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company and who shall be acceptable to
the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given
4
<PAGE> 14
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether a quorum is present at a meeting of Holders of Securities, (a) the
principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the principal amount
thereof that would be due and payable as of the date of such determination
upon acceleration of the Maturity thereof pursuant to Section 502, (b) the
principal amount of a Security denominated in a foreign currency shall be
the U.S. dollar equivalent, determined by the Company on the date of
original issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent,
determined on the date of original issuance of such Security, of the amount
determined as provided in (a) above), of such Security and (c) Securities
owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any one or more series of Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
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"Principal Subsidiary" means (i) The Boatmen's National Bank of St.
Louis and (ii) any Subsidiary whose total assets, as determined from its
most recent balance sheet, constitutes twenty five percent (25%) or more
of the total consolidated assets of the Company, as determined from the
most recent consolidated balance sheet of the Company contained in its most
recent periodic report, an annual report on Form 10-K or a quarterly report
on Form 10-Q, filed with the Commission prior to the date of such
determination.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301, or, if not so specified,
the last day of the calendar month preceding such Interest Payment Date if
such Interest Payment Date is the fifteenth day of the calendar month or
the fifteenth day of the calendar month preceding such Interest Payment
Date if such Interest Payment Date is the first day of a calendar month,
whether or not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or
any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller who shall have direct
responsibility for the administration of this Indenture or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
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"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided
in Sections 905 and 1007.
"United States" means the United States of America (including the
States and District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands.
"U.S. Government Obligations" has the meaning specified in Section 401.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word
or words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the outstanding
voting stock (other than any directors' qualifying shares) of which is
owned, directly or indirectly, by the Company or by one or more other
Wholly Owned Subsidiaries, or by the Company and one or more other Wholly
Owned Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
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SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned
to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
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(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate of opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate
or opinion is based are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate of
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or the holding of any Person of a Security shall be sufficient for any
purpose of his Indenture and (subject to Section 601) conclusive in favor of
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<PAGE> 19
the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1306.
The Company may set a record date for purposes of determining the
identity of Holders of Registered Securities entitled to vote or consent
to any action by vote or consent authorized or permitted under this
Indenture, which record date shall be the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation. If a record
date is fixed, those Persons who were Holders of Registered Securities at
such record date (or their duly designated proxies), and only those
Persons, shall be entitled with respect to such Securities to take such
action by vote or consent or to revoke any vote or consent previously given
whether or not such Persons continue to be Holders after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by
the Security Register.
(d) In determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture,
the principal amount of an Original Issue Discount Security that may be
counted in making such determination and that shall be deemed to be
Outstanding for such purposes shall be equal to the amount of the principal
thereof that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502 at the time the taking of
such action by the Holders of such requisite principal amount is evidenced
to the Trustee for such Securities.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security. Any consent or waiver of the Holder of
any Security shall be irrevocable for a period of six months after the date
of execution thereof, but otherwise any such Holder or subsequent Holder
may revoke the request, demand, authorization, direction, notice, consent
or other Act as to his Security or portion of his Security. Such
revocation shall be effective only if the Trustee
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receives the notice of revocation at least two Business Days before the date the
Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company,
Attention: Corporate Secretary.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at the address of
such Holder as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case in which notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by
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any of the provisions of the Trust Indenture Act, such provision of the Trust
Indenture Act shall control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day then (notwithstanding
any other provision of this Indenture) payment of principal and interest
(and premium and Additional Amounts, if any,) need not be made on such
date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided, that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, shareholder, officer,
director or employee of the Company or the Trustee or
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of any predecessor or successor of the Company or the Trustee with respect to
the Company's obligations on the Securities or the obligations of the Company or
the Trustee under this Indenture or any certificate or other writing delivered
in connection therewith.
SECTION 116. Business Day Certificate.
On the date of execution and delivery of this Indenture (with respect to
the remainder of calendar year 1994) and thereafter, within 15 days prior to
the end of each calendar year while this Indenture remains in effect (with
respect to the succeeding calendar years), the Company shall deliver to the
Trustee an Officers' Certificate specifying the days on which banking
institutions in the City of St. Louis are authorized or obligated by
law to be closed.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially such form or
forms (including global forms) as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. A copy of the Board Resolution establishing the form
or forms of Securities of any series shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Company Order contemplated by Section 303
or the authentication and delivery of such Securities.
The definitive Securities appertaining thereto, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing
such Securities appertaining thereto, as evidenced by their execution
thereof.
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SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK
as Trustee
By ----------------------------------------------
Authorized Officer."
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall
be specified in such Security or in a Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 304. Subject to the provisions
of Section 303 and, if applicable, Section 304, the Trustee shall deliver
and redeliver any Security in global form in the manner and upon
instructions given by the Person or Persons specified in such Security or
in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 103 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of
Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal
of (and premium, if any) and interest on any Security in global form shall
be made to the Person or Persons specified therein.
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Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or of the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a global Security
as shall be specified in a written statement, if any, of the Holder of such
global Security.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or
1107);
(3) whether Securities of the series are to be issuable in global
form and, if so, whether beneficial owners of interests in any such
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, and the Depositary for any
global Security or Securities;
(4) the date or dates on which the principal (and premium, if any)
of the Securities of the series is payable or the method of
determination thereof;
(5) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, whether
and under what circumstances Additional Amounts with respect to such
Securities shall be payable, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable and, if other than as set forth in Section 101, the Regular
Record Date for the interest payable on any Securities on any Interest
Payment Date;
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(6) the place or places where the principal of (and premium, if
any) and interest, if any, on, and any Additional Amounts with respect
to, the Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company, if
the Company is to have that option;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which, Securities of the series shall be redeemed or
purchased in whole or in part pursuant to such obligation;
(9) the denomination in which any Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
(10) the currency or currencies (including composite currencies)
in which payment of the principal of (and premium, if any) and interest
on, and any Additional Amounts with respect to, the Securities of the
series shall be payable if other than the currency of the United States
of America;
(11) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are
stated to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect to, Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(12) if the amount of payments of principal (and premium, if any)
or interest on, and any Additional Amounts with respect to, the
Securities of the series may be determined with reference to an index,
the manner in which such amounts shall be determined;
(13) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to
Section 401, any additional conditions to discharge pursuant to
Section 401 or 403 and the application, if any, of Section 403;
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(15) any deletions or modifications of or additions to the Events
of Default set forth in Section 501 or covenants of the Company set
forth in Article Ten pertaining to the Securities of the series; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical,
except as to denomination, and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to
Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture
supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of any
Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action together with such Board Resolution shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. In the absence of
any such provisions with respect to the Securities of any series, the
Registered Securities of such series denominated in Dollars shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any Securities of a series denominated in a
currency other than Dollars shall be issuable in denominations that are the
equivalent, as determined by the Company by reference to the noon buying
rate in The City of New York for cable transfers for such currency (the
"Exchange Rate"), as such Exchange Rate is reported or otherwise made
available by the Federal Reserve Bank of New York, on the applicable issue
date for such Securities, of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President, its
Treasurer or one of its Vice Presidents, under its corporate seal
reproduced thereon or affixed thereto attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted
by Sections 201 and 301, in authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect
of (i) bankruptcy, insolvency, reorganization or other law relating to
or affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law); and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with and
that the authentication and delivery of the Securities by the Trustee
will not violate the terms of this Indenture.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to the Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. Each Security shall be
dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such
certification upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement
(which need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company without
charge to the Holder. Upon surrender or cancellation of any one or more
temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at one
of the offices or agencies maintained pursuant to Section 1002 a register
(the register maintained in such office and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and of transfers of Registered
Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security of any
series at the office or agency for that series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities
of the same series and of like tenor, of any authorized denominations and
of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series and of like
tenor, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding any other provision of this Section 305 to the
contrary, unless and until it is exchanged in whole or in part for
Registered Securities in definitive form, a global Security representing
all or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for the Securities of a series
represented by one or more global Securities notifies the Company that it
is unwilling or unable to continue as Depositary for the Securities of such
series or if at any time the Depositary for the Securities of such series
shall no longer be eligible, the Company shall appoint a successor
Depositary with respect to the Securities of such series. If (i) the
Depositary for securities of a series represented by one or more global
Securities is at any time unwilling or unable to continue as Depositary or
the Depositary for the Securities of such series ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended,
and, in either event, a successor Depositary is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, (ii) the Company executes and delivers to the
Trustee a Company Order to the effect that the Securities of any series
issued in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities of
any series represented by one or more global Securities, the Company's
election that the Securities of such series be represented by one or more
global Securities shall no longer be effective with respect to the
Securities of such series, and the Company will execute, and the Trustee,
upon receipt of a Company Order of the Company for the authentication and
delivery of Registered Securities of such series, will authenticate and
deliver such Registered Securities of such series, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the global Security or Securities representing such Securities in exchange for
such global Security or Securities.
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If specified by the Company pursuant to Section 301 with respect to a
series of Securities represented by a global Security, the Depositary for
such global Security may surrender such global Security in exchange in
whole or in part for Registered Securities of the same series on such terms
as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a
Company Order for the authentication and delivery of Registered Securities
of such series shall authenticate and deliver, without service charge:
(1) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized
denominations as requested by such Depositary or Person, in an
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the global Security; and
(2) to such Depositary a new global Security in a denomination
equal to the difference, if any, between the principal amount of
the surrendered global Security and the aggregate principal amount
of Securities authenticated and delivered pursuant to clause (1)
above.
Upon the exchange of a global Security for Registered Securities, in
authorized denominations, such global Security shall be canceled by the
Trustee. Registered Securities issued in exchange for a global Security
pursuant to this Section 305 shall be registered in such names and in such
authorized denominations as the Depositary for such global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to or as directed by the Persons in whose names such Securities
are so registered.
Any Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in the
form satisfactory to the Company and the Security Registrar duly executed,
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchange pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the
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day of the mailing of a notice of redemption of Securities of such series
selected for redemption and ending at the close of business on the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired
by a bona fide purchaser the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case of any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise provided with respect to the Securities of any
series,
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payment of interest may be made at the option of the Company by
check mailed or delivered to the address of any Person entitled thereto as
such address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, in
exchange for or in lieu of, any other Security,
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shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal (and
premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts with respect to, such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities so delivered shall be promptly canceled by the
Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee
shall be disposed of in accordance with the general policies of the Trustee
unless otherwise directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of a series, and the Trustee, at the expense of
the Company, shall execute proper instruments furnished by the Company
acknowledging satisfaction and discharge of this Indenture with respect to
Securities of such series, when
(1) either
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(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
not theretofore delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the Trustee
as trust funds, under the terms of an irrevocable trust agreement
in form and substance satisfactory to the Trustee, money or U.S.
Government Obligations maturing as to principal and interest in
such amounts and at such times as will, together with the income
to accrue thereon, without consideration of any reinvestment
thereof, be sufficient to pay and discharge the entire indebtedness
on all Outstanding Securities of such series not theretofore
delivered to the Trustee for cancellation for principal (and
premium and Additional Amounts, if any) and interest to the Stated
Maturity or any Redemption Date contemplated by the penultimate
paragraph of this Section, as the case may be; or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series and to the Trustee pursuant to Section 607;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities
of such series pursuant to this Section 401; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein providing for or relating to the satisfaction and
discharge of this Indenture with respect to the Outstanding Securities
of such series have been complied with.
For the purposes of this Indenture, "U.S. Government Obligations" means
direct non-callable obligations of, or non-callable obligations the payment
of principal of and interest on which is guaranteed by, the United States
of America, or to the payment of which obligations or guarantees the full
faith and credit of the United States of America is pledged, or beneficial
interests in a trust the corpus of which consists exclusively of money or
such obligations or a combination thereof.
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If any Outstanding Securities of such series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement,
the trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the
Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this
Section 401, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee to any Authenticating Agent
under Section 614 and, except for a discharge pursuant to subclause (A) of
clause (1) of this Section, the obligations of the Company under
Sections 305, 306, 404, 1001 and 1002 and the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest and Additional Amounts for the
payment of which such money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this
Indenture and the Securities of such series to pay the principal of (and
premium, if any) and interest on, or Additional Amounts with respect to,
Securities of such series shall cease, terminate and be completely
discharged and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging such satisfaction and discharge, when
(1) the Company has complied with the provisions of Section 401 of
this Indenture (other than any additional conditions specified pursuant
to Sections 301 and 401(3)) with respect to all Outstanding Securities
of such series;
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities
of such series pursuant to this Section 403; and
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(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be
discharged from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of
the Company under applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series
in accordance with Section 401 or 403 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture with respect to the Securities
of such series and the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401 or 403
until such time as the Trustee or Paying Agent is permitted to apply such
money or U.S. Government Obligations in accordance with Section 401 or 403;
provided, however, that if the Company has made any payment of principal
or interest (or premium, if any) on, and any Additional Amounts with
respect to, any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative
or governmental body), unless it is either inapplicable to a particular
series or it is specifically deleted or modified in or pursuant to the
supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
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(1) default in the payment of any interest or any Additional
Amounts upon any Security of that series when such interest or
Additional Amounts become due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series
of Securities other than that series), and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of all Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankruptcy or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it, of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to
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pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional
Amounts with respect to, any Security is payable in a currency or
currencies (including a composite currency) other than Dollars and such
currency (or currencies) is (or are) not available to the Company for
making payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to Holders of the Securities by making
such payment in Dollars in an amount equal to the Dollar equivalent of the
amount payable in such other currency, as determined by the Trustee by
reference to the Exchange Rate on the date of such payment, or, if such
rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this
Section 501, any payment made under such circumstances in Dollars where the
required payment is in a currency other than dollars will not constitute
an Event of Default under this Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the
case of an Event of Default described in clause (1), (2), (3) or (7) of
Section 501) or (ii) all series of Securities (in the case of other Events
of Default) may declare the principal amount (or, if any such Securities
are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the
Securities of the series affected by such default or all series, as the
case may be, to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities of
that series (or of all series, as the case may be), by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
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(B) the principal of (and premium, if any, on) any Securities
of that series (or of all series, as the case may be) which have
become due otherwise than by such declaration of acceleration, and
interest thereon at the rate or rates prescribed therefor in such
Securities (in the case or Original Issue Discount Securities, the
Securities' Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the
rate or rates prescribed therefor in such Securities (in the case
of Original Issue Discount Securities, the Securities' Yield to
Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of
the principal of Securities of that series (or of all series, as the
case may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on, or any Additional Amounts with respect to, any Security of any
series when such interest or Additional Amounts shall have become due
and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest and
Additional Amounts and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue interest and Additional Amounts, at the rate or
rates prescribed therefor in such Securities (or in the case of Original
Issue Discount Securities, the Securities' Yield to Maturity), and, in
addition thereto, such further amount as shall be sufficient to cover the costs
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and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser
amount in the case of Original Issue Discount Securities) of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal, interest or
Additional Amounts) shall be entitled and empowered, by intervention in
such proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal
(or lesser amount in the case of Original Issue Discount Securities)
(and premium, if any) and interest and any Additional Amounts owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation,
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expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceedings.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without possession of any of
the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any), interest or any Additional Amounts, upon presentation of
the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest and any Additional
Amounts on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any), interest and Additional
Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"),
the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the Business Day
next preceding that on which final judgment is
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given. Neither the Company nor the Trustee shall be liable for any shortfall
nor shall it benefit from any windfall in payments to Holders of Securities
under this Section caused by a change in exchange rates between the time the
amount of a judgment against it is calculated as above and the time the Trustee
converts the Judgment Currency into the Required Currency to make payments under
this Section to Holders of Securities, but payment of such judgment shall
discharge all amounts owed by the Company on the claim or claims underlying
such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously
given written notice to the Trustee of such continuing Event of
Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date)
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and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding has been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under an Event of Default
described in clause (1), (2), (3) or (7) of Section 501, and with respect
to all Securities the Holders of a majority in principal amount of all
Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, not relating to or arising under
such an Event of Default, provided that in each such case
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(1) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of any such series or the
Outstanding Securities, as the case may be,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) in the opinion of the Trustee after having been advised by its
counsel, such direction shall not be unduly prejudicial to the rights
of the holders of Securities of such series (or all of the Outstanding
Securities, as the case may be) not joining in such action.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with respect to such series
relating to or arising under an Event of Default described in clause (3)
or (7) of Section 501 and its consequences, and the Holders of a majority
in principal amount of all Outstanding Securities may on behalf of the
Holders of all Securities waive any other past default hereunder and its
consequences, except in each case a default
(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security,
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Holder for the enforcement
of the
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payment of the principal of (or premium, if any) or interest on, or any
Additional Amounts with respect to, any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
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(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series or of all series, determined as
provided in Section 512, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series or of all
series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series, as their names and addresses
appear in the Security Register, notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on, or any Additional Amount
with respect to, any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until
at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
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(h) the Trustee shall not be charged with knowledge of any default
or Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (1) a Responsible Officer
shall have actual knowledge of such default or Event of Default or (2)
written notice of such default or Event of Default shall have been
given to the Trustee by the Company or any other obligor on such
Securities or by any Holder of such Securities; and
(i) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not
be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
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compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of, premium, if any, or
interest, if any, on, or Additional Amounts with respect to, particular
Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(5) or (6), the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
The Company's obligations under this Section 607 and any lien arising
hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Four of this
Indenture and/or the termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect
to the Securities of that series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities
of any series, the Trustee shall, within 10 days after the expiration of
such 90-day period, transmit by mail to all Holders of Securities of that
series, as their names and addresses appear in the Security Register,
notice of such failure.
(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture
Act and the Trustee shall comply with Section 310(b) of the Trust Indenture
Act; provided, that there shall be excluded from the operation of Section
310(b)(1) of the Trust Indenture Act with respect to any other indenture
or indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met. For purposes of the preceding sentence, the optional
provision permitted by the second sentence of Section 310(b)(9) of the Trust
Indenture Act shall be applicable.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the resigning Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation.
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then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and such successor Trustee or Trustees shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of
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the retiring Trustee and shall duly assign, transfer or deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of
a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture, the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the
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execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee, then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer or
partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof
or the District of Columbia. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall
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be acceptable to the Company and shall mail written notice of such appointment
by first-class mail, postage prepaid, to all Holders as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK
as Trustee
By ---------------------------------
as Authenticating Agent
By ---------------------------------
Authorized Officer"
Notwithstanding any provision of this Section 614 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to
any series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to
all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (i) to furnish to the Security Registrar
promptly all information necessary to enable the Security Registrar to
maintain at all times an accurate and current Security Register, and
(ii) prior to authenticating any Security denominated in a foreign
currency, to ascertain from the Company the units of such foreign currency
that are required to be determined by the Company pursuant to Section 302.
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ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date
relating to that series (or, if there is no Regular Record Date relating
to that series, on January 1 and July 1), a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of that series as of such dates; and
(b) at such other times as the Trustee may request in writing, within
30 days, after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than
15 days prior to the time such list is furnished;
provided, however, that if the Trustee shall be the Security Registrar with
respect to the Securities of any series, no such list need be furnished
with respect to such series of Securities.
SECTION 702. Preservation of Information; Communication to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained
in the most recent list furnished to the Trustee as provided in Section 701
and the names and addresses of Holders of each series received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list
so furnished.
(b) Holders of Securities may communicate pursuant to Section 312(b)
of the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 702(b), regardless of the source
from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
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SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
1994, the Trustee shall transmit by mail to Holders a brief report dated
as of such May 15 that complies with Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Section 313(b) of the Trust Indenture
Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders, as the names and addresses of such Holders
appear in the Security Register; and
(2) except in the case of reports pursuant to Subsection (b) of
this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, and shall
otherwise comply with Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties
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and assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and existing under the
laws of the Untied States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if any) and
interest (including all Additional Amounts, if any) on all the
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by Section 1007, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of such lease,
the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefits of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision; or
(5) to secure the Securities pursuant to Section 1007 or otherwise; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such other provisions as
may be made shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
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SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental
indenture (acting as one class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any
Additional Amounts with respect thereto or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay
Additional Amounts (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change the coin or currency or currencies (including
composite currencies) in which any Security or any premium or any
interest thereon or Additional Amounts with respect thereto is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide with
respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on
the consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 301 without the consent of
any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1009, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular
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series of Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive (and, subject to Section 601 shall be fully protected
in relying upon) an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts with respect to
the Securities of that series in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain for each series of Securities an office or agency
where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee. The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities it will, on or before each due date of
the principal of (and premium, if any) or interest on or any Additional
Amounts with respect to any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest or
Additional Amounts so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on or any Additional Amounts
with respect to any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest or
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Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium, interest or
Additional Amounts, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on or Additional Amounts with respect
to Securities of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on or Additional
Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which sums were held by the
Company or such Paying Agent; and upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on or Additional Amounts with respect to any Security
of any series and remaining unclaimed for two years after such principal
(and premium, if any) or interest or Additional Amounts has become due and
payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after
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a date specified herein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will,
unless otherwise required by mandatory provisions of applicable escheat,
or abandoned or unclaimed property law, be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment
of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent that
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary
and not disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments
and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary.
SECTION 1007. Liens.
So long as any of the Securities are outstanding, the Company will not,
and will not permit any Principal Subsidiary to, pledge, mortgage,
hypothecate or grant a security interest in, or permit any mortgage,
pledge, security interest or other lien upon, any property or assets owned
by the Company or any Principal Subsidiary to secure any Indebtedness,
without making effective provision whereby the outstanding Securities shall
(so long as such other Indebtedness shall be so secured) be equally and
ratably secured with any and all such other Indebtedness and any other
indebtedness similarly entitled to be equally and ratably secured;
provided, however, that this restriction shall not apply to nor prevent the
creation or existence of:
(a) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets created at the time of the acquisition of
such property or assets by the Company
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or any Principal Subsidiary or within one year after such time to secure all
or a portion of the purchase price for such property or assets;
(b) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets existing thereon at the time of the
acquisition thereof by the Company or any Principal Subsidiary (whether
or not the obligations secured thereby are assumed by the Company or
any Subsidiary);
(c) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets, whenever acquired, of any corporation that
becomes a Principal Subsidiary after the date hereof, provided that
(i) the instrument creating such mortgage, pledge, security interest,
lien or encumbrance shall be in effect prior to the time such
corporation becomes a Principal Subsidiary and (ii) such mortgage,
pledge, security interest, lien or encumbrance shall only apply to
properties or assets owned by such corporation at the time it becomes
a Principal Subsidiary or thereafter acquired by it from sources other
than the Company or another Principal Subsidiary;
(d) any extension, renewal, or refunding of any mortgage, pledge,
security interest, lien or encumbrance permitted by Subsection (a), (b)
or (c) above on substantially the same property or assets theretofore
subject thereto;
(e) any mortgage, pledge, security interest, lien or encumbrance
in favor of the Company or any Wholly Owned Subsidiary;
(f) any mortgage, pledge, security interest, lien or encumbrance
created or assumed by the Company or a Principal Subsidiary in
connection with the issuance of debt securities the interest on which
is excludable from gross income of the holder of such security pursuant
to the Internal Revenue Code of 1986, as amended, for the purpose of
financing, in whole or in part, the acquisition or construction of
property or assets to be used by the Company or a Subsidiary; or
(g) any mortgage, pledge, security interest, lien or encumbrance
securing any Indebtedness in an amount which, together with all other
Indebtedness secured by a mortgage, pledge, security interest, lien or
encumbrance that is not otherwise permitted by the provisions of this
Section 1007, does not at the time of the incurrence of the
Indebtedness so secured exceed 5% of Consolidated Tangible Assets, as
determined from the most recent consolidated balance sheet of the
Company contained in its most recent periodic report, an annual report
on Form 10-K or a quarterly report on Form 10-Q, filed with the
Commission prior to the date of such incurrence.
In case the Company or any Principal Subsidiary shall propose to
pledge, mortgage, hypothecate or grant a security interest in any property
or assets owned by the Company or any Principal Subsidiary to secure any
Indebtedness, other than as permitted by subdivisions (a) to (g),
inclusive, of this Section 1007, the Company will prior thereto give
written notice thereof
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to the Trustee, and the Company will, or will cause such Principal Subsidiary
to, prior to or simultaneously with such pledge, mortgage, hypothecation or
grant of security interest, by supplemental indenture executed to the Trustee
(or to the extent legally necessary to another trustee or additional or separate
trustee), in form satisfactory to the Trustee, effectively secure (for so long
as such other Indebtedness shall be so secured) all the Securities equally and
ratably with such Indebtedness and with any other indebtedness similarly
entitled to be equally and ratably secured. Such supplemental indenture shall
contain the provisions concerning the possession, control, release and
substitution of mortgaged and pledged property and securities and other
appropriate matters which are required by the Trust Indenture Act (as in effect
at the date of execution of such supplemental indenture) to be included in a
secured indenture qualified under the Trust Indenture Act, and may also contain
such additional and amendatory provisions permitted by the Trust Indenture
Act as the Company and the Trustee shall deem advisable or appropriate or
as the Trustee shall deem necessary in connection with such pledge,
mortgage, hypothecation or grant of security interest.
For the purpose of this Section 1007, "security interest" shall include
the interest of the lessor under a lease with a term of three years or more
that should be, in accordance with generally accepted accounting
principles, recorded as a capital lease.
SECTION 1008. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year (which as of the date hereof is December 31) of the
Company ending after the date hereof so long as any Security is outstanding
hereunder, an Officers' Certificate signed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, stating that a review of the activities of the
Company during such year and of performance under this Indenture has been
made under the supervision of the signers thereof and whether or not to the
best of their knowledge the Company is in default in the fulfillment of any
of its obligations under this Indenture, and if the Company shall be in
default, specifying each such default known to them and the nature and
status thereof.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1007, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated
by Section 301 (unless otherwise specified pursuant to Section 301) if
before or after the time for such compliance the Holders of a majority in
principal amount of the Outstanding Securities of all series affected by
such omission (acting as one class) shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition
shall remain in full force and effect.
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SECTION 1010. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series
thereto Additional Amounts as provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or the
net proceeds received on the sale or exchange of any Security of any
series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section to the extent that, in such
context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of
the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of Securities of such
series to be redeemed. In case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by or at the direction of the Trustee,
from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal
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amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal amount
of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 107 to Holders of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the certificate numbers (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption as contemplated by Section 107 need not identify
particular Registered Securities to be redeemed. Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
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SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
and any Additional Amounts with respect to, all the Securities which are
to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless
the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest (and any Additional Amounts) to the
Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security or, in the case of Original Issue
Discount Securities, the Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing, and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and Stated Maturity, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred
to as an "optional sinking fund payment". Unless otherwise provided by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payment Otherwise Than With Cash.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and
the amount of such sinking payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivery of or by crediting
Securities of that series pursuant to Section 1202 and will also deliver
to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the
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redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1301, to be held at such
time and at such place in the City of St. Louis, Missouri or The City of
New York, as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 107, not
less than 20 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for
any such series to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1301, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given notice of such meeting within
30 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the City of St. Louis,
Missouri or The City of New York for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in Subsection (a)
of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons
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entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Subject to Section 1305(d), notice of the reconvening of any adjourned
meeting shall be given as provided in Section 1302(a), except that such
notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; provided, however, that except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a
specified percentage that is less than a majority in aggregate principal
amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such
specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed
or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series, whether or not present or represented
at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner specified
in Section 105 and the appointment of any proxy shall be proved in the
manner specified in Section 105.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities
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as provided in Section 1302(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be, shall appoint
a temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect
of any Security challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote, except as a Holder of a Security of such series or as a
proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or
of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented
by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast
at the meeting. A record, at least in duplicate, of the proceedings of
each meeting of Holders of Securities of any series shall be prepared by
the secretary of the meeting and there shall be attached to such record the
original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that such
notice was given as provided in Section 1302, and, if applicable,
Section 1304. Each copy shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one such copy shall
be delivered to the Company, and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
BOATMEN'S BANCSHARES, INC.
[CORPORATE SEAL] By -------------------------------------
Name:
Title:
CHEMICAL BANK
[CORPORATE SEAL] By -------------------------------------
Name:
Title:
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<PAGE> 74
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On the --- of ----------, 199-, before me personally came
- -----------------------, to me known, who, being by me duly sworn, did
depose and say that he is --------------------- of BOATMEN'S BANCSHARES,
INC. one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
) SS
CITY OF NEW YORK )
On the --- day of ------------, 199-, before me personally came
- ---------------------, to me known, who, being by me duly sworn, did depose
and say that he is ------------- of CHEMICAL BANK, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
65
<PAGE> 1
EXHIBIT 4(b)
BOATMEN'S BANCSHARES, INC.
DEBT SECURITIES
-----------------------
FORM OF THIRD SUPPLEMENTAL INDENTURE
SUBORDINATED DEBT SECURITIES
-----------------------
<PAGE> 2
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
BOATMEN'S BANCSHARES, INC.
AND
CHEMICAL BANK, TRUSTEE
---------------------------------------------
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF -------------, 199-
---------------------------------------------
SUBORDINATED DEBT SECURITIES
---------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE> 3
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of ----------------, 199-, by
and between BOATMEN'S BANCSHARES, INC., a Missouri corporation (the
"Company") and CHEMICAL BANK, a New York corporation (as successor by
merger to Manufacturers Hanover Trust Company, a New York corporation), as
trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore entered into the Indenture, dated as of
October 2, 1989 (the "Indenture") to provide for the issuance of its
subordinated debt securities ("Securities") in one or more series and has
appointed the Trustee to serve as trustee thereunder.
The Company and the Trustee, by First Supplemental Indenture, dated
September 23, 1992 (the "First Supplemental Indenture"), supplemented the
Indenture to provide for the issuance of Securities in global form.
The Company and the Trustee, by Second Supplemental Indenture, dated
March 18, 1993 (the "Second Supplemental Indenture"), supplemented the
Indenture to provide for the issuance of Securities which are intended to
meet the criteria of 12 C.F.R. Section 250.166 and qualify for treatment
as tier 2 capital under the rules and regulations of the Board of
Governors of the Federal Reserve System.
Pursuant to Sections 2.01 and 10.01(f) of the Indenture, the Company
desires to supplement the Indenture effective only with respect to any one
or more series of Securities issued subsequent to the date of this Third
Supplemental Indenture, to provide certain additional provisions regarding
the satisfaction and discharge of the Indenture which respect to
Securities of such series.
All things necessary to make Securities issued under the Indenture,
as hereby supplemented, the valid obligation of the Company, and to make
the Indenture, as hereby supplemented, a valid agreement of the Company,
in accordance with their and its terms, have been done as of the date
hereof.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
In order to comply with the requirements of the Indenture,
the Company covenants and agrees with the Trustee for the equal
and proportionate benefit of the holders of Securities issued on
or after the date hereof as follows:
<PAGE> 4
ARTICLE ONE
ADDITIONAL DEFINITIONS
SECTION 101. The following definition is added to the
-----------
provisions of Article I of the Indenture, following the
definition of "Company" and preceding the definition of "Event
of Default":
Defeasible Security:
-------------------
The term "Defeasible Security" shall mean a
Security of a series designated pursuant to Section
2.01 as being subject to legal defeasance in
accordance with the provisions of Section 13.05 of the
Indenture.
SECTION 102. The following definition is added to the
-----------
provisions of Article I of the Indenture, following the
definition of "Trust Indenture Act of 1939":
U. S. Government Obligations:
----------------------------
The term "U. S. Government Obligations" shall
mean direct non-callable obligations of, or non-
callable obligations the payment of principal of and
interest on which is guaranteed by, the United States
of America, or to the payment of which obligations or
guarantees the full faith and credit of the United
States of America is pledged, or beneficial interests
in a trust the corpus of which consists exclusively of
money or such obligations or a combination thereof.
ARTICLE TWO
PROVISIONS GOVERNING DEFEASIBLE SECURITIES
SECTION 201. The word "and" is hereby removed from the end
-----------
of subparagraph (12) of Section 2.01 of the Indenture (as
amended by the Second Supplemental Indenture), added at the end
of subparagraph (13), and the following new subparagraph (14) is
hereby added to Section 2.01:
(14) whether the Securities of the series shall
be issued as Defeasible Securities and, if so, any
terms or conditions (in addition to those specified in
Section 13.05) applicable to the legal defeasance of
the Securities of such series;
2
<PAGE> 5
ARTICLE THREE
PROVISIONS GOVERNING DEFEASIBLE SECURITIES
SECTION 301. The following new Section 13.05 is hereby
-----------
added to Article XIII of the Indenture:
Section 13.05. Defeasance of Securities. If the
------------------------
Company shall, with respect to all Securities of a series
designated pursuant to Section 2.01 (14) as Defeasible
Securities and which have not theretofore been delivered to
the Trustee for cancellation, (a) deposit or cause to be
deposited with the Trustee as trust funds, under the terms
of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, money or U. S. Government
Obligations maturing as to principal and interest in such
amounts and at such times as will, together with the income
to accrue thereon, without consideration of any
reinvestment thereof, be sufficient to pay at maturity the
principal and any interest due or to become due, and any
other sums payable under this Indenture with respect to all
Defeasible Securities of such series not theretofore
delivered to the Trustee for cancellation, (b) complied
with any other conditions specified pursuant to Section
2.01 to be applicable to the discharge of such Defeasible
Securities pursuant to this Section 13.05, and (c)
delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions
precedent herein providing for, or relating to, the
satisfaction and discharge of this Indenture with respect
to such Defeasible Securities have been complied with, then
this Indenture shall cease to be of further effect with
respect to such Defeasible Securities (except as to (y)
rights hereunder of holders to receive payments of
principal of, and any interest and other amounts payable
on, such Defeasible Securities, and (z) remaining rights of
registration of transfer, substitution and exchange of such
Defeasible Securities). Subject to the provisions of
Section 13.04, all money deposited with the Trustee
pursuant to this Section 13.05 shall be held in trust and
applied by it, in accordance with the provisions of the
Defeasible Securities and this Indenture, to the payment,
either directly or through any paying agent as the Trustee
may determine, to the Persons entitled thereto, of the
principal, interest and any other sums for which such money
has been deposited with the Trustee. If the Trustee or any
paying agent is unable to apply any money or U.S.
Government Obligations deposited with respect to any
Defeasible Securities by reason of any legal proceeding or
by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations
under this Indenture with respect to such Defeasible
Securities and such Defeasible Securities shall be revived
and reinstated as though no deposit had occurred pursuant
to this Section 13.05 until such time as the Trustee or
paying agent is permitted to apply such money or U.S.
Government Obligations in accordance with this
Section 13.05; provided, however, that if the Company has
made any payment of principal or interest or any other sum
payable under this Indenture with respect to any Defeasible
Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the
Holders of such Defeasible Securities to receive such
payment from the money or U.S. Government Obligations held
by the Trustee or paying agent.
3
<PAGE> 6
ARTICLE FOUR
MISCELLANEOUS
SECTION 401. Except as otherwise expressly provided or
-----------
unless the context otherwise requires, all terms used herein
which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION 402. The recitals contained herein shall be taken
-----------
as the statements of the Company only, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Third
Supplemental Indenture.
SECTION 403. This Third Supplemental Indenture shall be
-----------
governed by and construed in accordance with the laws of the
jurisdiction which govern the Indenture and its construction.
SECTION 404. This Third Supplemental Indenture may be
-----------
executed in any number of counterparts each of which shall be an
original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 405. In accordance with Section 10.04 of the
-----------
Indenture, all Securities authenticated and delivered after the
execution of this Third Supplemental Indenture shall bear the
following notation:
"As of ---------, 199-, the Indenture, dated as of October
2, 1989, relating to this Security has been amended by a First
Supplemental Indenture, dated as of September 23, 1992, a Second
Supplemental Indenture, dated as of March 18, 1993, and a Third
Supplemental Indenture, dated as of ---------------, 199-."
IN WITNESS WHEREOF, the parties hereto have caused this
Third Supplemental Indenture to be duly executed and their
respective seals to be affixed hereunto and duly attested all as
of the day and year first above written.
[SEAL] BOATMEN'S BANCSHARES, INC.
ATTEST:
- --------------------- By----------------------------------
Assistant Secretary Name:----------------------
Title:---------------------
4
<PAGE> 7
[SEAL] CHEMICAL BANK (AS SUCCESSOR BY MERGER TO
MANUFACTURERS HANOVER TRUST COMPANY),
TRUSTEE
ATTEST:
- --------------------- By----------------------------------
Trust Officer Name:----------------------
Title:---------------------
STATE OF MISSOURI )
) ss.
CITY OF ST. LOUIS )
On the ---- day of --------, in the year 199-, before
me personally came ----------------, to me known, who, being by
me duly sworn, did depose and say that he resides at
- ---------------------; that he is the ------------------- of
Boatmen's Bancshares, Inc., a corporation described in and which
executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to the authority
of the Board of Directors of said corporation: and that he
signed his name thereto pursuant to like authority.
------------------------------
Notary Public
STATE OF NEW YORK )
) ss.
CITY OF NEW YORK )
On the ---- day of --------, in the year 199-, before
me personally came ----------------------------------, to me
known, who, being by me duly sworn, did depose and say that he
resides at --------------------------------; that he is a Vice
President of Chemical Bank, a corporation described in and which
executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to the authority
of the Board of Directors of said corporation; and that he
signed his name thereto pursuant to like authority.
------------------------------
Notary Public
5
<PAGE> 1
EXHIBIT 4(c)
BOATMEN'S BANCSHARES, INC.
DEPOSITARY SHARES
----------------------
FORM OF DEPOSIT AGREEMENT
----------------------
Date
<PAGE> 2
==============================================================================
DEPOSIT AGREEMENT
AMONG
BOATMEN'S BANCSHARES, INC.,
---------------------, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
==============================================================================
Dated as of ---------------------, 19----
<PAGE> 3
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transfer of Receipts . . . . . . . . . . . . 2
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof . . . . . . . . . . . . . 3
Section 2.3. Redemption of Stock . . . . . . . . . . . . . . . . . 3
Section 2.4. Registration of Transfer of Receipts. . . . . . . . . 4
Section 2.5. Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Stock . . . . . . . . . 4
Section 2.6. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts . . . . . . . . . 5
Section 2.7. Lost Receipts, etc. . . . . . . . . . . . . . . . . . 6
Section 2.8. Cancellation and Destruction of Surrendered
Receipts. . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE CORPORATION
Section 3.1. Filing Proofs, Certificates and Other Information . . 6
Section 3.2. Payment of Taxes or Other Governmental Charges. . . . 6
Section 3.3. Warranty as to Stock. . . . . . . . . . . . . . . . . 6
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1. Cash Distributions. . . . . . . . . . . . . . . . . . 7
Section 4.2. Distributions Other than Cash . . . . . . . . . . . . 7
Section 4.3. Subscription Rights, Preferences or Privileges. . . . 7
Section 4.4. Notice of Dividends, etc.; Fixing of Record Date
for Holders of Receipts . . . . . . . . . . . . . . . 8
Section 4.5. Voting Rights . . . . . . . . . . . . . . . . . . . . 8
i
<PAGE> 4
<CAPTION>
Page
----
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations,
etc. . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.7. Inspection of Reports . . . . . . . . . . . . . . . . 9
Section 4.8. Lists of Receipt Holders. . . . . . . . . . . . . . . 9
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE CORPORATION
Section 5.1. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar. . . . . . . . . . . . . 9
Section 5.2. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar
or the Corporation . . . . . . . . . . . . . . . . . 10
Section 5.3. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Corporation . . . . . . 10
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . . 11
Section 5.5. Corporate Notices and Reports . . . . . . . . . . . . 12
Section 5.6. Indemnification by the Corporation. . . . . . . . . . 12
Section 5.7. Charges and Expenses. . . . . . . . . . . . . . . . . 12
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.2. Termination . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts. . . . . . . . . . . . . . . . . . . . . 13
Section 7.2. Exclusive Benefit of Parties. . . . . . . . . . . . . 13
Section 7.3. Invalidity of Provisions. . . . . . . . . . . . . . . 13
Section 7.4. Notices . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.5. Depositary's Agents . . . . . . . . . . . . . . . . . 14
Section 7.6. Holders of Receipts Are Parties . . . . . . . . . . . 14
Section 7.7. Governing Law . . . . . . . . . . . . . . . . . . . . 14
Section 7.8. Inspection of Deposit Agreement . . . . . . . . . . . 14
Section 7.9. Headings. . . . . . . . . . . . . . . . . . . . . . . 14
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Signatures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Exhibit A: Depositary Receipt
</TABLE>
ii
<PAGE> 5
DEPOSIT AGREEMENT
DATED AS OF -----------------------, 19----
BOATMEN'S BANCSHARES, INC.,
A MISSOURI CORPORATION,
----------------------, A -------------------- CORPORATION,
AND THE HOLDERS
FROM TIME TO TIME OF THE RECEIPTS
DESCRIBED HEREIN.
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of [INSERT
DESIGNATION OF PREFERRED STOCK], without par value, of BOATMEN'S
BANCSHARES, INC. for the purposes set forth in this Deposit
Agreement, and for the issuance hereunder of Receipts (as
hereinafter defined) evidencing Depositary Shares (as hereinafter
defined), in respect of the Stock (as hereinafter defined) so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A attached hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. The following definitions shall for
all purposes, unless otherwise indicated, apply to the respective
terms used in this Deposit Agreement and the Receipts:
"Certificate of Designation" shall mean the Certificate of
Designation filed with the Office of the Secretary of State of the
State of Missouri establishing the Stock as a series of preferred
stock of the Corporation.
"Corporation" shall mean Boatmen's Bancshares, Inc., a Missouri
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean ---------------------------, and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing [SPECIFY FRACTION] interest in a share of Stock and
evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the principal office of the
Depositary in [CITY], at which at any particular time its depositary
receipt business shall be administered.
<PAGE> 6
"Receipt" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form.
"Record Holder" as applied with respect to a Receipt shall mean
the person in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein
provided.
"Stock" shall mean shares of the Corporation's [INSERT
DESIGNATION OF PREFERRED STOCK].
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. FORM AND TRANSFER OF RECEIPTS. Definitive
Receipts shall be engraved or printed or lithographed on steel-
engraved borders and shall be substantially in the form set forth in
Exhibit A attached to this Deposit Agreement and incorporated herein
by reference, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the
Corporation or any holder of Stock, as the case may be, delivered in
compliance with Section 2.2, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, photocopied
or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the
Corporation and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at
an office described in the second paragraph of Section 2.2, without
charge to the holder. Upon surrender for cancellation of any one or
more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number
of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the
Corporation's expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled
to the same benefits under this Deposit Agreement, and with respect
to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided,
that such signature may be a facsimile if a Registrar for the
Receipts (other than the Depositary) shall have been appointed and
such Receipts are counter-signed by manual signature of a duly
authorized officer of the Registrar. No Receipt shall be entitled
to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depositary or, if a
Registrar for the Receipts shall have been appointed, by manual or
facsimile signature of a duly authorized officer of such Registrar.
The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares up to but not in excess of
- --------------------------- Depositary Shares for any particular
Receipt.
2
<PAGE> 7
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with
the provisions of this Deposit Agreement as may be required by the
Depositary or required to comply with any applicable law or any
regulation thereunder [OR WITH THE RULES AND REGULATIONS OF ANY
SECURITIES EXCHANGE UPON WHICH THE STOCK, THE DEPOSITARY SHARES OR
THE RECEIPTS MAY BE LISTED] or to conform with any usage with
respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument
of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that
until transfer of a Receipt shall be registered on the books of the
Depositary as provided in Section 2.4, the Depositary may,
notwithstanding any notice to the contrary, treat the Record Holder
thereof at such time as the absolute owner thereof for the purpose
of determining the person entitled to dividends or other
distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
Section 2.2. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of
this Deposit Agreement, the Corporation may from time to time
deposit shares of Stock under this Deposit Agreement by delivery to
the Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement, and
together with a written order of the Depositary, the Corporation or
such holder, as the case may be, directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of
Depositary Shares representing [INTERESTS IN] such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above
specified, and upon recordation of the Stock on the books of the
Corporation in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the
person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a
Receipt for the number of Depositary Shares relating to the Stock
deposited and registered in such name or names as may be required by
such person or persons. The Depositary shall execute and deliver
such Receipt at the Depositary's Office or such other offices, if
any, as the Depositary may designate. Delivery at other offices
shall be at the risk and expense of the person requesting such
delivery.
Other than in the case of splits, combinations, or other
reclassifications affecting the Stock, or in the case of dividends
or other distributions of Stock, if any, there shall be deposited
hereunder not more than ----- shares of Stock.
Section 2.3. REDEMPTION OF STOCK. Whenever the Corporation
shall elect to redeem shares of Stock, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary not less
than 40 nor more than 55 days' notice of the date of such proposed
redemption of Stock. On the date of such redemption, the Depositary
shall redeem the Depositary Shares relating to such Stock. The
Depositary
3
<PAGE> 8
shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed, first-class postage prepaid,
not less than 30 and not more than 45 days prior to the date fixed
for redemption of such Stock and Depositary Shares (the "Redemption
Date"), to the Record Holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such
holders as they appear on the records of the Depositary; but neither
failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to other holders.
Each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the
number of such Depositary Shares held by such holders to be so
redeemed; (iii) the redemption price; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for
payment of the redemption price; and (v) that dividends in respect
of the Stock underlying the Depositary Shares to be redeemed will
cease to accumulate [AT THE CLOSE OF BUSINESS] on such Redemption
Date. In case less than all the outstanding Depositary Shares are
to be redeemed, the Depositary Shares to be so redeemed shall be
selected by lot or pro rata as may be determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Corporation shall have
failed to redeem the shares of Stock to be redeemed by it as set
forth in the Corporation's notice provided for in the preceding
paragraph) all dividends in respect of the shares of Stock so called
for redemption shall cease to accumulate, the Depositary Shares
being redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price)
shall, to the extent of such Depositary Shares, cease and terminate
and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to [SPECIFY FRACTION] of the redemption price
per share paid in respect of the shares of Stock plus all money and
other property, if any, underlying such Depositary Shares, including
all amounts paid by the Corporation in respect of dividends which on
the Redemption Date have accumulated on the shares of Stock to be so
redeemed and have not therefore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder
of such Receipt upon its surrender to the Depositary, together with
the redemption payment, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for
redemption.
Section 2.4. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to
the terms and conditions of this Deposit Agreement, the Depositary
shall register on its books from time to time transfers of Receipts
upon any surrender thereof by the holder in person or by duly
authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer. Thereupon the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or
upon the order of the person entitled thereto.
Section 2.5. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER
OF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it
may designate for the purpose of effecting a split-up or combination
of such Receipt or Receipts, and subject to the terms and conditions
of this Deposit Agreement, the Depositary shall execute and deliver a
4
<PAGE> 9
new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may withdraw the Stock and all money and other
property, if any, represented thereby by surrendering such Receipt
or Receipts at the Depositary's Office or at such other offices as
the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such
holder or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal, but holders of such whole
shares of Stock will not thereafter be entitled to deposit such
Stock hereunder or to receive Depositary Shares therefor. If a
Receipt delivered by the holder to the Depositary in connection with
such withdrawal shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of
whole shares of Stock to be so withdrawn, the Depositary shall at
the same time, in addition to such number of whole shares of Stock
and such money and other property, if any, to be so withdrawn,
deliver to such holder, or (subject to Section 2.3) upon such
holder's order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other
property, if any, being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the
Depositary may deem appropriate.
If the Stock and the money and other property, if any, being
withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts surrendered by
such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by
the Depositary at the Depositary's Office, except that, at the
request, risk and expense of the holder surrendering such Receipt or
Receipts and for the account of the holder thereof, such delivery
may be made at such other place as may be designated by such holder.
Section 2.6. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the
execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt, the Depositary,
any of the Depositary's Agents or the Corporation may require
payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Corporation shall have made such payment,
the reimbursement to it) of any charges or expenses payable by the
holder of a Receipt pursuant to Section 5.7, may require the
production of evidence satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary or the Corporation may
establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Receipts may be refused and the
registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Corporation is closed or (ii) if any such action
is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Corporation at any time or from time to
time because of any requirement of law or of any government or
governmental body or commission or under any provision of this
Deposit Agreement.
5
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Section 2.7. LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its
discretion may execute and deliver a Receipt of like form and tenor
in exchange and substitution for such mutilated Receipt, or in lieu
of and in substitution for such destroyed, lost or stolen Receipt,
upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss
or theft of such Receipt, of the authenticity thereof and of his or
her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
Section 2.8. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary or any
Depositary's Agent shall be canceled by the Depositary. Except as
prohibited by applicable law or regulation, any canceled receipts
held by the Depositary shall be delivered to the Corporation or
disposed of as directed by the Corporation.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE CORPORATION
Section 3.1. FILING PROOFS, CERTIFICATES AND OTHER
INFORMATION. Any holder of a Receipt may be required from time to
time to file such proof of residence, or other matters or other
information, to execute such certificates and to make such
representations and warranties as the Depositary or the Corporation
may reasonably deem necessary or proper. The Depositary or the
Corporation may withhold the delivery, or delay the registration of
transfer, redemption or exchange, of any Receipt or the distribution
of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and
warranties are made.
Section 3.2. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
Holders of Receipts shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in
Section 5.7. Registration of transfer of any Receipt or any
withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may
be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or all or
any part of the Stock or the property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold may be
sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale), and such
dividends, interest payments or other distributions or the proceeds
of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any
deficiency.
Section 3.3. WARRANTY AS TO STOCK. The Corporation hereby
represents and warrants that the Stock, when issued, will be validly
issued, fully paid and non assessable. Such representation and
warranty shall survive the deposit of the Stock and the issuance of
Receipts.
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1. CASH DISTRIBUTIONS. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
Record Holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such dividend or distribution as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Corporation or the Depositary
shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be
reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for
interest thereon) and shall be added to and be treated as part of
the next sum received by the Depositary for distribution to Record
Holders of Receipts then outstanding.
Section 4.2. DISTRIBUTIONS OTHER THAN CASH. Whenever the
Depositary shall receive any distribution other than cash upon
Stock, the Depositary shall, subject to Sections 3.1 and 3.2,
distribute to Record Holders of Receipts on the record date fixed
pursuant to Section 4.4 such amounts of the securities or property
received by it as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary may
deem equitable and practicable for accomplishing such distribution.
If in the opinion of the Depositary such distribution cannot be made
proportionately among such Record Holders, or if for any such reason
(including any requirement that the Corporation or the Depositary
withhold an amount on account of taxes) the Depositary deems, after
consultation with the Corporation, such distribution not to be
feasible, the Depositary may, with the approval of the Corporation,
adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at
public or private sale) of the securities or property thus received,
or any part thereof, at such place or places and upon such terms as
it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed or made available
for distribution, as the case may be, by the Depositary to Record
Holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash.
Section 4.3. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES.
If the Corporation shall at any time offer or cause to be offered to
the persons in whose names Stock is recorded on the books of the
Corporation any rights, preferences or privileges to subscribe for
or to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the
Depositary to the Record Holders of Receipts in such manner as the
Depositary may determine, either by the issue to such Record Holders
of warrants representing such rights, preferences or privileges or
by such other method as may be approved by the Depositary in its
discretion with the approval of the Corporation; provided, however,
that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Corporation) not feasible to
make such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (ii) if and to
the extent so instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, then the
Depositary, in its discretion (with the approval of the Corporation,
in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if
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applicable laws or the terms of such rights, preferences or
privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and
upon such terms as it may deem proper. The net proceeds of any such
sale, subject to Sections 3.1 and 3.2, shall be distributed by the
Depositary to the Record Holders of Receipts entitled thereto as
provided by Section 4.1 in the case of a distribution received in
cash.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is
required in order for holders of Receipts to be offered or sold the
securities to which such rights, preferences or privileges relate,
the Corporation agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect
to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance
of the expiration of such rights, preferences or privileges to
enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the
holders of Receipts any right, preference or privilege to subscribe
for or to purchase any securities unless and until such a
registration statement shall have become effective, or unless the
offering and sale of such securities to such holders are exempt from
registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be
made available to holders of Receipts, the Corporation agrees with
the Depositary that the Corporation will use its best efforts to
take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
Section 4.4. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE
FOR HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than
cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to Stock, or whenever the
Depositary shall receive notice of any meeting at which holders of
Stock are entitled to vote or of which holders of Stock are entitled
to notice [OR WHENEVER THE DEPOSITARY AND THE CORPORATION SHALL
DECIDE IT IS APPROPRIATE], the Depositary shall in each such
instance fix a record date (which shall be the same date as the
record date fixed by the Corporation with respect to the Stock) for
the determination of holders of Receipts who shall be entitled
hereunder to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof,
or to give instructions for the exercise of voting rights at any
such meeting, or who shall be entitled to notice of such meeting or
for any other appropriate reasons.
Section 4.5. VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
Record Holders of Receipts a notice which shall contain (i) such
information as is contained in such notice of meeting and (ii) a
statement, that the holders may instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Stock
representing their respective Depositary Shares (including an
express indication that instructions may be given to the Depositary
to give a discretionary proxy to a person designated by the
Corporation) and a brief statement as to the manner in which such
instructions may be given. Upon the written request of the holders
of Receipts on such record date, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance
with the instructions set forth in such requests, the maximum number
of whole shares of Stock underlying the Depositary Shares evidenced
by all Receipts as to which any particular voting instructions are
received. The Corporation
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hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the
extent of the Stock representing the Depositary Shares evidenced by
such Receipt.
Section 4.6. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par
or stated value, split-up, combination or any other reclassification
of the Stock, or upon any recapitalization, reorganization, merger
or consolidation affecting the Corporation or to which it is a
party, the Depositary may in its discretion with the approval of,
and shall upon the instructions of, the Corporation, and (in either
case) in such manner as the Depositary may deem equitable, (i) make
such adjustments [AS ARE CERTIFIED BY THE CORPORATION] in (a) the
fraction of an interest in one share of Stock underlying one
Depositary Share and (b) the ratio of the redemption price per
Depositary Share to the redemption price of a share of Stock, in
each case as may be necessary fully to reflect the effects of such
change in par or stated value, split-up, combination or other
reclassification of Stock, or of such recapitalization,
reorganization, merger or consolidation and (ii) treat any
securities which shall be received by the Depositary in exchange for
or upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case the Depositary may in its
discretion, with the approval of the Corporation, execute and
deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities.
Section 4.7. INSPECTION OF REPORTS. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's
Office, and at such other places as it may from time to time deem
advisable, any reports and communications received from the
Corporation which are received by the Depositary as the holder of
Stock.
Section 4.8. LISTS OF RECEIPT HOLDERS. Promptly upon request
from time to time by the Corporation, the Depositary shall furnish
to it a list, as of a recent date, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts
are registered on the books of the Depositary or Registrar, as the
case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE CORPORATION
Section 5.1. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER
BOOKS BY THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit
Agreement, the Depositary shall maintain at the Depositary's Office,
facilities for the execution and delivery, registration and
registration of transfer, surrender and exchange of Receipts, and at
the offices of the Depositary's Agents, if any, facilities for the
delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which
books at all reasonable times shall be open for inspection by the
Record Holders of Receipts; provided, that any such holder
requesting to exercise such right shall certify to the Depositary
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that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
The Depositary may, with the approval of the Corporation,
appoint a Registrar for registration of the Receipts or the
Depositary Shares evidenced thereby.
[IF THE RECEIPTS OR THE DEPOSITARY SHARES EVIDENCED THEREBY OR
THE STOCK UNDERLYING SUCH DEPOSITARY SHARES SHALL BE LISTED ON THE
NEW YORK STOCK EXCHANGE, THE DEPOSITARY SHALL, WITH THE APPROVAL OF
THE CORPORATION, APPOINT A REGISTRAR (ACCEPTABLE TO THE CORPORATION)
FOR REGISTRATION OF SUCH RECEIPTS OR DEPOSITARY SHARES IN ACCORDANCE
WITH ANY REQUIREMENTS OF SUCH EXCHANGE. SUCH REGISTRAR (WHICH MAY
BE THE DEPOSITARY IF SO PERMITTED BY THE REQUIREMENT OF SUCH
EXCHANGE) MAY BE REMOVED AND A SUBSTITUTE REGISTRAR APPOINTED BY THE
DEPOSITARY UPON THE REQUEST OR WITH THE APPROVAL OF THE CORPORATION.
IF THE RECEIPTS, SUCH DEPOSITARY SHARES OR SUCH STOCK ARE LISTED ON
ONE OR MORE OTHER STOCK EXCHANGES, THE DEPOSITARY WILL, AT THE
REQUEST OF THE CORPORATION, ARRANGE SUCH FACILITIES FOR THE
DELIVERY, REGISTRATION, REGISTRATION OF TRANSFER, SURRENDER AND
EXCHANGE OF SUCH RECEIPTS, SUCH DEPOSITARY SHARES OR SUCH STOCK AS
MAY BE REQUIRED BY LAW OR APPLICABLE STOCK EXCHANGE REGULATION.]
Section 5.2. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE
CORPORATION. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Corporation shall incur any liability to any
holder of any Receipt if by reason of any provision of any present
or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of
the Depositary, the Depositary's Agent or the Registrar, by reason
of any provision, present or future, of the Corporation's Restated
Articles of Incorporation (including the Certificate of Designation)
or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's
Agent, the Registrar or the Corporation shall be prevented or
forbidden from, or subjected to any penalty on account of, doing or
performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, any Registrar or the Corporation
incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of
any act or thing which the terms of this Deposit Agreement provide
shall or may be done or performed, or (ii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the gross
negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
Section 5.3. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE CORPORATION. Neither the Depositary
nor any Depositary's Agent nor any Registrar nor the Corporation
assumes any obligation or shall be subject to any liability under
this Deposit Agreement to holders of Receipts other than for its
gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Corporation shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding
in respect to the Stock, the Depositary Shares or the Receipts which
in its opinion may involve it in expense or liability unless
indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
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Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Corporation shall be liable for any action or any
failure to act by it in reliance upon the written advice of legal
counsel or accountants, or information from any person presenting
Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar
and the Corporation may each rely and shall each be protected in
acting upon any written notice, request, direction or other document
believed by it to be genuine and to have been signed or presented by
the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for
the manner or effect of any such vote, as long as any such action or
nonaction is in good faith. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such duties and
only such duties as are specifically set forth in this Deposit
Agreement, and no implied covenants or obligations shall be read
into this Deposit Agreement against the Depositary or any Registrar.
The Depositary will indemnify the Corporation against any liability
which may arise out of acts performed or omitted by the Depositary
or its agents due to its or their negligence or bad faith. The
Depositary, the Depositary's Agents, any Registrar and the
Corporation may own and deal in any class of securities of the
Corporation and its affiliates and in Receipts. The Depositary may
also act as transfer agent or registrar for any of the securities of
the Corporation and its affiliates.
Section 5.4. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time
resign as Depositary hereunder by notice of its election so to do
delivered to the Corporation, such resignation, to take effect upon
the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Corporation by
notice of such removal delivered to the Depositary, such removal to
take effect only upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Corporation shall, within 60 days after
the delivery of the notice of resignation or removal, as the case
may be, appoint a successor Depositary, which shall be a bank or
trust company having its principal office in the United States of
America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so
appointed and have accepted appointment within 60 days after
delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of
a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Corporation an instrument
in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become
fully vested with all the rights, powers, duties and obligations of
its predecessor and for all purposes shall be the Depositary under
this Deposit Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Corporation, shall
execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign,
transfer and deliver all right, title and interest in the Stock and
any moneys or property held hereunder to such successor and shall
deliver to such successor a list of the Record Holders of all
outstanding Receipts. Any successor Depositary shall promptly mail
notice of its appointment to the Record Holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act, and
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notice thereof shall not be required hereunder.
Such successor Depositary may authenticate the Receipts in the name
of the predecessor Depositary or in the name of the successor
Depositary.
Section 5.5. CORPORATE NOTICES AND REPORTS. The Corporation
agrees that it will transmit to the Record Holders of Receipts, in
each case at the address furnished to it pursuant to Section 4.8,
all notices and reports (including without limitation financial
statements) required by law, the rules of any national securities
exchange upon which the Stock, the Depositary Shares or the Receipts
are listed or by the Corporation's Restated Articles of
Incorporation (including the Certificate of Designation) to be
furnished by the Corporation to holders of Stock. Such transmission
will be at the Corporation's expense.
Section 5.6. INDEMNIFICATION BY THE CORPORATION. The
Corporation shall indemnify the Depositary, any Depositary's Agent
and any Registrar against, and hold each of them harmless from, any
loss, liability or expense (including the costs and expenses of
defending itself) which may arise out of (i) acts performed or
omitted in connection with this Deposit Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective
agents (including any Depositary's Agent), except for any liability
arising out of negligence or bad faith on the respective parts of
any such person or persons, or (b) by the Corporation or any of its
agents, or (ii) the offer, sale or registration of the Receipts or
the Stock pursuant to the provisions hereof.
Section 5.7. CHARGES AND EXPENSES. The Corporation shall pay
all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. The Corporation
shall pay all charges of the Depositary in connection with the
initial deposit of the Stock and the initial issuance of the
Depositary Shares, and redemption of the Stock at the option of the
Corporation. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs
charges or expenses for which it is not otherwise liable hereunder,
such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case, fees and
expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Corporation as to the amount and
nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Corporation once every
three months or at such other intervals as the Corporation and the
Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. AMENDMENT. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time
to time be amended by agreement between the Corporation and the
Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment which shall
(i) impose or increase any fees, taxes or charges upon the holders
of Receipts (other than charges and expenses imposed or incurred
pursuant to Section 5.7 above) or (ii) materially and adversely
alter the rights of the holders of Receipts, shall be effective
unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every
holder of an outstanding Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by
this Deposit Agreement as amended thereby.
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Section 6.2. TERMINATION. This Deposit Agreement may be
terminated by the Corporation or the Depositary only after (i) all
outstanding Depositary Shares shall have been redeemed pursuant to
Section 2.3 or (ii) there shall have been made a final distribution
in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Corporation.
Upon the termination of this Deposit Agreement, the Corporation
shall be discharged from all obligations under this Deposit
Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.6 and 5.7.
ARTICLE VII
MISCELLANEOUS
Section 7.1. COUNTERPARTS. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same
instrument.
Section 7.2. EXCLUSIVE BENEFIT OF PARTIES. This Deposit
Agreement is for the exclusive benefit of the parties hereto
(including those persons referred to in Section 7.6), and their
respective successors hereunder, and shall not be deemed to give any
legal or equitable right, remedy or claim to any other person
whatsoever.
Section 7.3. INVALIDITY OF PROVISIONS. In case any one or
more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
Section 7.4. NOTICES. Any and all notices to be given to the
Corporation hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail or telegram or telex confirmed by letter, addressed to
the Corporation at One Boatmen's Plaza, 800 Market Street,
St. Louis, Missouri 63101, Attention: Secretary, or at any other
address of which the Corporation shall have notified the Depositary
in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by
telegram or telex confirmed by letter, addressed to the Depositary
at the Depositary's Office, at ----------------, or at any other
address of which the Depositary shall have notified the Corporation
in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail or by telegram or telex confirmed by letter, addressed
to such record holder at the address of such record holder as it
appears on the books of the Depositary, or if such holder shall have
filed with the Depositary a written request that notices intended
for such holder be mailed to some other address, at the address
designated in such request.
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Delivery of a notice sent by mail or by telegram or telex shall
be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a
telegram or telex message) is deposited, postage prepaid, in a post
office letter box. The Depositary or the Corporation may, however,
act upon any telegram or telex message received by it from the other
or from any holder of a Receipt, notwithstanding that such telegram
or telex message shall not subsequently be confirmed by letter or as
aforesaid.
Section 7.5. DEPOSITARY'S AGENTS. The Depositary may from
time to time appoint Depositary's Agents to act in any respect for
the Depositary for the purposes of this Deposit Agreement and may at
any time appoint additional Depositary's Agents and vary or
terminate the appointment of such Depositary's Agents. The
Depositary will notify the Corporation of any such action.
Section 7.6. HOLDERS OF RECEIPTS ARE PARTIES. The holders of
Receipts from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions
hereof and the Receipts by acceptance of delivery thereof.
Section 7.7. GOVERNING LAW. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, and construed in accordance
with, the laws of the State of Missouri.
Section 7.8. INSPECTION OF DEPOSIT AGREEMENT. Copies of this
Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business
hours at the Depositary's Office and the respective offices of the
Depositary's Agents, if any, by any holder of a Receipt.
Section 7.9. HEADINGS. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth
in Exhibit A hereto have been inserted for convenience only and are
not to be regarded as a part of this Deposit Agreement or the
Receipts or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Corporation and the Depositary have
duly executed this Deposit Agreement as of the day and year first
above set forth, and all holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts issued
in accordance with the terms hereof.
Attested by: BOATMEN'S BANCSHARES, INC.
- ---------------------------------- By-------------------------------
------------------, Secretary Vice President
[Seal]
[DEPOSITARY]
- ---------------------------------- By-------------------------------
------------------, Secretary Authorized Officer
Title----------------------
[Seal]
14
<PAGE> 19
EXHIBIT A
[FORM OF FACE OF RECEIPT]
THE DEPOSITARY SHARES AND THE STOCK (EACH AS DEFINED BELOW) ARE NOT
SAVINGS OR DEPOSIT ACCOUNTS, BUT ARE EQUITY INTERESTS IN BOATMEN'S
BANCSHARES, INC. AND ARE NOT INSURED BY THE SAVINGS ASSOCIATION
INSURANCE FUND OR THE BANK INSURANCE FUND OF THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
TEMPORARY RECEIPT
Exchangeable for Definitive Engraved Receipt When Ready for Delivery
NUMBER --------------- DEPOSITARY SHARES
CERTIFICATE FOR [NOT MORE THAN] ------------ DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK, SERIES ----- OF
BOATMEN'S BANCSHARES, INC.
[CUSIP ---------]
INCORPORATED UNDER THE LAWS OF MISSOURI SEE REVERSE FOR
CERTAIN DEFINITIONS
- ---------------------, as Depositary (the "Depositary"), hereby
certifies that --------------------- is the registered owner of
- ------ DEPOSITARY SHARES ("Depositary Shares"), each Depositary
Share representing [specify fraction] of one share of Preferred
Stock, Series ----, stated value $------ Per Share (the "Stock"), of
Boatmen's Bancshares, Inc., a Missouri corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms
and entitled to the benefits of the Deposit Agreement dated as of
- -------------, 19-- (the "Deposit Agreement"), between the
Corporation and the Depositary. By accepting this Depositary
Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. [The
Stock and Depositary Shares are redeemable on and after
- ----------------, 19--, at the option of the Corporation.] This
Depositary Receipt shall not be valid or obligatory for any purpose
or entitled to any benefits under the Deposit Agreement unless it
shall have been executed by the Depositary by the manual signature
of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a
Registrar in respect of the Depositary Receipts by the manual
signature of a duly authorized officer thereof.
Dated: Countersigned:
- ------------------------ ----------------------- [----------------------]
Depositary Registrar Transfer Agent
By:--------------------- By:-------------------- [By:-------------------]
Authorized Officer Authorized Officer Authorized Officer
<PAGE> 20
[FORM OF REVERSE OF RECEIPT]
BOATMEN'S BANCSHARES, INC.
BOATMEN'S BANCSHARES, INC. WILL, UPON REQUEST, FURNISH ANY HOLDER OF
A RECEIPT WITHOUT CHARGE A COPY OF THE DEPOSIT AGREEMENT AND A COPY
OF THE PORTIONS OF THE CERTIFICATE OF DESIGNATION CONTAINING THE
DESIGNATIONS, PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF ALL
STOCK AND ANY CLASS OR SERIES THEREOF. [ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.]
--------------------
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A
CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
--------------------
The following abbreviations, when used in the inscription on
the face of this Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations.
TEN COM - as tenants in UNIF GIFT MIN ACT - ---- Custodian ----
common (Cust) (Minor)
Under Uniform Gifts to Minors Act
TEN ENT - as tenants by
the entireties
WT TEM - as joint tenants with
right of survivorship
and not as tenants
in common
- ---------------------------------------
(State)
Additional abbreviations may also be used though not in the
above list.
For value received, ------------------------- hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
- -------------------------------------------------
(Please print or typewrite name and address; including postal zip
code of Assignee) ---------------------------------------------
Depositary Shares represented by the within receipt, and do hereby
irrevocably constitute and appoint --------------------------------
Attorney to transfer the said Depositary Shares on the books of the
within-named Depositary with full power of substitution in the
premises.
Dated: --------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of this Receipt in
every particular, without alteration or enlargement or any
change whatever
Signature Guaranteed:
- ---------------------------------------
- ---------------------------------------
<PAGE> 1
EXHIBIT 4(d)
BOATMEN'S BANCSHARES, INC.
WARRANT AGREEMENT
------------------------
FORM OF WARRANT AGREEMENT
-------------------------
Date
<PAGE> 2
BOATMEN'S BANCSHARES, INC.
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement"), dated as of
- ---------------, is between Boatmen's Bancshares, Inc., a Missouri
corporation (the "Corporation"), and------------------------------,
as Warrant Agent (the "Warrant Agent").
A. The Corporation proposes to sell [if Warrants are sold
--------------------
with other securities -- [title of such other securities being
- ---------------------
offered] (the "Offered Securities") with] warrant certificates
evidencing one or more warrants (the "Warrants" or individually a
"Warrant") representing the right to purchase [title of equity or
debt securities purchasable through exercise of Warrants] (the
"Warrant Securities"), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called
the "Warrant Certificates."
B. The Corporation desires the Warrant Agent to act on
behalf of the Corporation in connection with the issuance,
exchange, exercise and replacement of the Warrant Certificates, and
in this Agreement wishes to set forth, among other things, the form
and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and
replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
Section 1.01. ISSUANCE OF WARRANTS. [If Warrants alone --
-----------------
Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Offered Securities and Warrants -- Warrants shall
----------------------------------
be [initially] issued in connection with the issuance of the
Offered Securities [but shall be separately transferable on and
after ------------------ (the "Detachable Date")] [and shall not be
separately transferable], and each Warrant Certificate shall evidence
one or more Warrants.] Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to
purchase one Warrant Security. [If Offered Securities and Warrants --
----------------------------------
Warrant Certificates shall be initially issued in units with the
Offered Securities, and each Warrant Certificate included in such
a unit shall evidence ---------- Warrants for each [$--------------
in principal amount] [-------- shares] of Offered Securities included
in such unit.]
Section 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES.
Each Warrant Certificate, whenever issued, shall be in registered
form substantially in the form set forth in Exhibit A hereto, shall
be dated ------------- and may have such letters numbers or other
marks of identification or designation and such legends or
endorsements printed, lithographed
<PAGE> 3
or engraved thereon as the
officers of the Corporation executing the same may approve
(execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be signed on
behalf of the Corporation by its Chairman of the Board, its Vice
Chairman of the Board, its Chief Executive Officer, its President
or one of its Vice Presidents and by its Secretary or one of its
Assistant Secretaries under its corporate seal reproduced thereon.
Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on
the Warrant Certificates. The seal of the Corporation may be in
the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the
Warrant Agent. Such signature by the Warrant Agent upon any
Warrant Certificate executed by the Corporation shall be conclusive
evidence that the Warrant Certificate so countersigned has been
duly issued hereunder.
In case any officer of the Corporation who shall have signed
any of the Warrant Certificates either manually or by facsimile
signature shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and delivered
by the Warrant Agent, such Warrant Certificates may be
countersigned and delivered notwithstanding that the person who
signed such Warrant Certificates ceased to be such officer of the
Corporation, and any Warrant Certificate may be signed on behalf of
the Corporation by such persons as, at the actual date of the
execution of such Warrant Certificate, shall be the proper officers
of the Corporation, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose [If Offered Securities and
-------------------------
Warrants are not immediately detachable -- or upon the register of
- ---------------------------------------
the Offered Securities prior to the Detachable Date. Prior to the
Detachable Date, the Corporation will, or will cause the registrar
of the Offered Securities to, make available at all times to the
Warrant Agent such information as to holders of the Offered
Securities with Warrants as may be necessary to keep the Warrant
Agent's records up to date].
Section 1.03. ISSUANCE OF WARRANT CERTIFICATE. Warrant
Certificates evidencing the right to purchase an aggregate not
exceeding ---------- Warrant Securities (except as provided in
Sections 2.03(c), 3.02 and 4.01) may be executed by the Corporation
and delivered to the Warrant Agent upon the execution of this
Agreement and from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf
of the Corporation, countersign Warrant Certificates evidencing
Warrants representing the right to
2
<PAGE> 4
purchase up to ----------------- Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the
Corporation. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously
countersigned Warrant Certificates or in connection with their
transfer, as hereinafter provided.
Section 1.04. TEMPORARY WARRANT CERTIFICATES. Pending the
preparation of definitive Warrant Certificates, the Corporation may
execute, and upon the order of the Corporation, the Warrant Agent
shall authenticate and deliver, temporary Warrant Certificates
which are printed, lithographed, typewritten, mimeographed or
otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such
insertions, omissions, substitutions and other variations as the
officers executing such Warrant Certificate may determine as
appropriate, as evidenced by their execution of such Warrant
Certificates.
If temporary Warrant Certificates are issued, the Corporation
will cause definitive Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Warrant
Certificates, the temporary Warrant Certificates shall be
exchangeable for definitive Warrant Certificates upon surrender of
the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or -------------], without charge to the holder.
Upon surrender for cancellation of any one or more temporary
Warrant Certificates the Corporation shall execute and the Warrant
Agent shall authenticate and deliver in exchange therefor
definitive Warrant Certificates representing the same aggregate
number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. WARRANT PRICE. During the period from
- ------------, through and including ------------, the exercise
price of each Warrant will be ------------. Such purchase price of
Warrant Securities is referred to in this Agreement as the "Warrant
Price". No adjustment shall be made for any dividends on any
Warrant Securities issuable upon exercise of any Warrant.
Section 2.02. DURATION OF WARRANTS. Each Warrant may be
exercised in whole at any time, as specified herein, on or after
[the date thereof] [---------------] and at or before 5 p.m.
New York City time, on ------------ or such later date as the
Corporation may designate, by notice to the Warrant Agent and the
holders of Warrant Certificates mailed to their addresses as set
forth in the record books of the Warrant Agent (the "Expiration
Date"). Each Warrant not exercised at or before 5 p.m. New York
City time, on the Expiration Date shall become void, and all rights
of the holder of the Warrant Certificate evidencing such Warrant
under this Agreement shall cease.
3
<PAGE> 5
Section 2.03. EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.02, any whole
number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant
Certificate and by paying in full, [in lawful money of the United
States of America] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire
transfer] in [immediately available] [next-day] funds the Warrant
Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office [or at ----------], provided that such
exercise is subject to receipt within five (5) business days of
such [payment] [wire transfer] by the Warrant Agent of the Warrant
Certificate with the form of election to purchase Warrant
Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which payment in
full of the Warrant Price is received by the Warrant Agent shall,
subject to receipt of the Warrant Certificate as aforesaid, be
deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of
the Warrant Price in an account of the Corporation maintained with
it and shall advise the Corporation by telephone at the end of each
day on which a [payment] [wire transfer] for the exercise of
Warrants is received of the amount so deposited to its account.
The Warrant Agent shall promptly confirm such telephone advice to
the Corporation in writing.
(b) The Warrant Agent shall, from time to time, as promptly
as reasonably practicable, advise the Corporation of (i) the number
of Warrants exercised, (ii) the instructions of each holder of the
Warrant Certificates evidencing such Warrants with respect to
delivery of the Warrant Securities to which such holder is entitled
upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Corporation
shall reasonably require.
(c) As soon as reasonably practicable after the exercise of
any Warrant, the Corporation shall issue to or upon the order of
the holder of the Warrant Certificate evidencing such Warrant, the
Warrant Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be
directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the
Corporation shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver a new Warrant
Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Corporation shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in
connection with any transfer involved in the issue of the Warrant
Securities, and in the event that any such transfer is involved,
the Corporation shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been
paid or it has been established to the Corporation's satisfaction
that no such tax or other charge is due.
(e) Prior to the issuance of any Warrants there shall have
been reserved, and the Corporation shall at all times keep
reserved, out of its authorized but unissued Warrant Securities, a
number of shares sufficient to provide for the exercise of the
Warrant Certificates.
4
<PAGE> 6
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
Section 3.01. NO RIGHTS AS WARRANT SECURITYHOLDER CONFERRED
BY WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificates or
Warrant evidenced thereby shall entitle the holder thereof to any
of the rights of a holder of Warrant Securities, including, without
limitation, the right to receive the payment of dividends or
distributions, if any, on the Warrant Securities or to exercise any
voting rights.
Section 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence
reasonably satisfactory to it and the Corporation of the ownership
of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to the Warrant
Agent and the Corporation and, in the case of mutilation, upon
surrender thereof to the Warrant Agent for cancellation, then, in
the absence of notice to the Corporation or the Warrant Agent that
such Warrant Certificate has been acquired by a bona fide
purchaser, the Corporation shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, in
exchange for or in lieu of the lost, stolen, destroyed or mutilated
Warrant Certificate, a new Warrant Certificate of the same tenor
and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section 3.02, the Corporation
may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu
of any lost, stolen or destroyed Warrant Certificate shall be at
any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and
all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section 3.02 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
Section 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE
RIGHTS. Notwithstanding any of the provisions of this Agreement,
any holder of a Warrant Certificate, without the consent of the
Warrant Agent, the holder of any Warrant Securities or the holder
of any other Warrant Certificate, may, in such holder's own behalf
and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Corporation
suitable to enforce, or otherwise in respect of, such holder's
right to exercise the Warrants evidenced by such holder's Warrant
Certificate in the manner provided in such holder's Warrant
Certificate and in this Agreement.
Section 3.04. RECLASSIFICATION, CONSOLIDATION, MERGER, SALE,
CONVEYANCE OR LEASE. In case any of the following shall occur
while any Warrants are outstanding: (a) any reclassification or
change of the outstanding shares of Warrant Securities, or (b) any
consolidation or merger to which the Corporation is party (other
than a consolidation or merger in which the Corporation is the
continuing corporation and which does not result in any
5
<PAGE> 7
reclassification of, or change in, the outstanding shares of
Warrant Securities issuable upon exercise of the Warrants), or
(c) any sale, conveyance or lease to another corporation of the
property of the Corporation as an entirety or substantially as an
entirety, the Corporation, or such successor or purchasing
corporation, as the case may be, shall make appropriate provision
by amendment of this Agreement or otherwise so that the holders of
the Warrants then outstanding shall have the right at any time
thereafter, upon exercise of such Warrants, to purchase the kind
and amount of shares of stock and other securities and property
receivable upon such a reclassification, change, consolidation,
merger, sale, conveyance or lease as would be received by a holder
of the number of shares of Warrant Securities issuable upon
exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance
or lease, and, in the case of a consolidation, merger, sale,
conveyance or lease the Corporation shall thereupon be relieved of
any further obligation hereunder or under the Warrants, and the
Corporation as the predecessor corporation may thereupon or any
time thereafter be dissolved, wound up or liquidated. Such
successor or assuming corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of the
Corporation, any or all of the Warrants issuable hereunder that
theretofore shall not have been signed by the Corporation, and may
execute and deliver Warrant Securities in its own name, in
fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrant. All the Warrants so issued shall in all
respects have the same legal rank and benefit under this Agreement
as the Warrants theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Warrants had been
issued at the date of the execution hereof. In any case of any
such reclassification, change, consolidation, merger, conveyance,
transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Warrants thereafter to be issued as
may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification,
change, consolidation, merger, conveyance, transfer or lease
complies with the provisions of this Section 3.04.
6
<PAGE> 8
ARTICLE IV
EXCHANGE AND TRANSFERS OF WARRANT CERTIFICATES
Section 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
[If Offered Securities with Warrants that are immediately
--------------------------------------------------------
detachable -- Upon] [If Offered Securities with Warrants that are
- ---------- --------------------------------------------
not immediately detachable -- Prior to the Detachable Date a
- --------------------------
Warrant Certificate may be exchanged or transferred only together
with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security.
Prior to any Detachable Date, each transfer of the Offered Security
[on the register of the Offered Securities] shall operate also to
transfer the related Warrant Certificates. After the Detachable
Date upon] surrender at the corporate trust office of the Warrant
Agent [or ---------------], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other
denominations evidencing such Warrants or the transfer thereof may
be registered in whole or in part; provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. The Warrant Agent shall keep,
at its corporate trust office [and at -----------], books in which,
subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and exchanges and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office [or
- --------] for exchange or registration of transfer, properly
endorsed or accompanied by appropriate instruments of registration
of transfer and written instructions for transfer, all in form
satisfactory to the Corporation and the Warrant Agent. No service
charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Corporation may require payment of
a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant
Certificates are so surrendered for exchange or registration of
transfer, an authorized officer of the Warrant Agent shall manually
countersign and deliver to the person or persons entitled thereto
a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Corporation, as so requested. The Warrant Agent
shall not be required to effect any exchange or registration of
transfer that will result in the issuance of a Warrant Certificate
evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall
be the valid obligation of the Corporation, evidencing the same
obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificate surrendered for such exchange
or registration of transfer.
Section 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES.
[If Offered Securities and Warrants are not immediately detachable --
-----------------------------------------------------------------
Prior to the Detachable Date, the Corporation, the
Warrant Agent and all other persons may treat the owner of the
Offered Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding.
After the Detachable Date and prior to due presentment of a Warrant
Certificate for registration of transfer,] [t][T]he Corporation and
the Warrant Agent may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any
7
<PAGE> 9
purpose and as
the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary
notwithstanding.
Section 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any
Warrant Certificate surrendered for exchange, registration of
transfer or exercise of the Warrants evidenced thereby shall, if
surrendered to the Corporation, be delivered to the Warrant Agent
and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by the Warrant Agent and
shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in
exchange or in lieu thereof. The Warrant Agent shall deliver to
the Corporation from time to time or otherwise dispose of canceled
Warrant Certificates in a manner satisfactory to the Corporation.
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.01. WARRANT AGENT. The Corporation hereby appoints
- -------------------- as the Warrant Agent of the Corporation in respect
of the Warrants and the Warrant Certificates upon the terms and subject
to the conditions herein set forth, and -------------------------------
hereby accepts such appointment. The Warrant
Agent shall have the powers and authority granted to and conferred
upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Corporation as the
Corporation may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed
by the terms and provisions hereof.
Section 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The
Warrant Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following to all of
which the Corporation agrees and to all of which the rights
hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Corporation
agrees promptly to pay the Warrant Agent the compensation
agreed upon with the Corporation for all services rendered by
the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
reasonably incurred without negligence or bad faith by the
Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Corporation also agrees
to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as Warrant
Agent hereunder, as well as the costs and expenses of
defending against any claim of such liability.
(b) AGENT FOR THE CORPORATION. In acting under this
Warrant Agent and in connection with the Warrant Certificates,
the Warrant Agent is acting solely as agent of
8
<PAGE> 10
the Corporation and does not assume any obligations or relationship
of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) COUNSEL. The Warrant Agent may consult with
nationally recognized counsel satisfactory to it, and the
written advice of such counsel shall be full and complete
authorization and protection in respect of any action
reasonably taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) DOCUMENTS. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken
or thing suffered by it in reliance upon any Warrant
Certificate, notice, direction , consent, certificate,
affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or
acquire any interest in, Warrants, with the same rights that
it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, it
or they may engage or be interested in any financial or other
transaction with the Corporation and may act on, or as
depositary, trustee or agent for, any committee or body of
holders of Warrant Securities or other obligations of the
Corporation as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agent shall be deemed to
prevent the Warrant Agent from acting as Trustee under any of
the Indentures.
(f) NO LIABILITY FOR INTEREST. Unless otherwise agreed
with the Corporation, the Warrant Agent shall have no
liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Agreement or of
the Warrant Certificates.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent
shall have no liability with respect to any invalidity of this
Agreement or any of the Warrant Certificates (except as to the
Warrant Agent's countersignature thereon).
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant
Agent shall not be responsible for any of the recitals or
representations herein or in the Warrant Certificates (except
as to the Warrant Agent's countersignature thereof), all of
which are made solely by the Corporation.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the
Warrant Certificates specifically set forth and no implied
duties or obligations shall be read into this Agreement or the
Warrant Certificates against the Warrant Agent. The Warrant
Agent shall not be accountable or under any duty or
responsibility for the use by the Corporation of any of the
Warrant Certificates authenticated by the Warrant Agent and
delivered by it to the Corporation
9
<PAGE> 11
pursuant to this Agreement
or for the application by the Corporation of the proceeds of
the Warrant Certificates. The Warrant Agent shall have no
duty or responsibility in case of any default by the
Corporation in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the case
of a receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in
Section 6.02 hereof, to make any demand upon the Corporation.
Section 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The
The Corporation agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised
or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Corporation of such intention on its
part, specifying the date on which its desired resignation shall
become effective; provided that such date shall be no less than
three (3) months after the date on which such notice is given
unless the Corporation otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Corporation and
specifying such removal and the intended date when it shall become
effective. Such resignation or removal shall take effect upon the
appointment by the Corporation, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company
authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such
appointment by such successor Warrant Agent. The obligation of the
Corporation under Section 5.02(a) shall continue to the extent set
forth therein, notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or shall commence a voluntary
case under the Federal bankruptcy laws, as now or hereafter
constituted, or under any other applicable Federal or state
bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall
make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of
the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or similar law;
or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or similar
official) of the Warrant Agent or of its property or affairs, or
any public officer shall take charge or control of the Warrant
Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Corporation by an instrument
10
<PAGE> 12
in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the
Corporation an instrument accepting such appointment hereunder, and
thereupon such successor Warrant Agent, without any further act,
deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, duties and obligations of such predecessor
with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with
or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the
Warrant Agent may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant
Agent shall be a party, or any corporation to which the Warrant
Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
Section 6.01. AMENDMENT. This Agreement may be amended by
the parties hereto, without the consent of the holder of any
Warrant Certificate, for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provisions
contained herein, or making any other provisions with respect to
matters or questions arising under this Agreement as the
Corporation and the Warrant Agent may deem necessary or desirable;
provided; however, that such action shall not affect adversely the
- -----------------
interests of the holders of the Warrant Certificates.
Section 6.02. NOTICES AND DEMANDS TO THE CORPORATION AND
WARRANT AGENT. If the Warrant Agent shall receive any notice or
demand addressed to the Corporation by the holder of a Warrant
Certificate pursuant to the provisions of the Warrant Certificates,
the Warrant Agent shall promptly forward such notice or demand to
the Corporation.
Section 6.03. ADDRESSES. Any communication from the
Corporation to the Warrant Agent with respect to this Agreement
shall be addressed to ----------------------------, Attention:
- --------------- and any communication from the Warrant Agent to the
Corporation with respect to this Agreement shall be addressed to
Boatmen's Bancshares, Inc., One Boatmen's Plaza, 800 Market Street,
St. Louis, Missouri 63101, Attention: Corporate Secretary (or such
other address as shall be specified in writing by the Warrant Agent
or by the Corporation).
11
<PAGE> 13
Section 6.04. APPLICABLE LAW. The validity, interpretation
and performance of this Agreement and each Warrant Certificate
issued hereunder and of the respective terms and provisions thereof
shall be governed by, and construed in accordance with, the laws of
the State of New York.
Section 6.05. DELIVERY OF PROSPECTUS. The Corporation will
furnish to the Warrant Agent sufficient copies of a prospectus
relating to the Warrant Securities deliverable upon exercise of the
Warrants (the "Prospectus"), and the Warrant Agent agrees that upon
the exercise of any Warrant, the Warrant Agent will deliver a
Prospectus to the holder of the Warrant Certificate evidencing such
Warrant prior or concurrently with the delivery of the Warrant
Securities issued upon such exercise. The Warrant Agent shall not,
by reason of any such delivery, assume any responsibility for the
accuracy or adequacy of such Prospectus.
Section 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The
Corporation will from time to time take all action which may be
necessary to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and
securities acts filings under Federal and state laws (including
without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933,
as amended), which may be or become requisite in connection with
the issuance, sale, transfer, and delivery of the Warrant
Securities issued upon exercise of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery
of the Warrants or upon the expiration of the period during which
the Warrants are exercisable.
Section 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement shall give to any person other than the
Corporation, the Warrant Agent and the holders of the Warrant
Certificates any right, remedy or claim under or by reason of this
Agreement.
Section 6.08. HEADINGS. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 6.09. COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which as so executed shall
be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 6.10. INSPECTION OF AGREEMENT. A copy of this
Agreement shall be available at all reasonable times at the
principal corporate trust office of the Warrant Agent for
inspection by the holder of any Warrant Certificate. The Warrant
Agent may require such holder to submit his Warrant Certificate for
inspection by it.
12
<PAGE> 14
IN WITNESS WHEREOF, BOATMEN'S BANCSHARES, INC. and
- ---------------- have caused this Agreement to be signed by their
respective duly authorized officers, and their respective corporate
seals to be affixed hereunto, and the same to be attested by their
respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
BOATMEN'S BANCSHARES, INC.
By: ---------------------------------
Title:
Attest:
- ----------------------------
Title:
[Warrant Agent]
By: ---------------------------------
Title:
Attest:
- ----------------------------
Title:
13
<PAGE> 15
Exhibit A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[Form of Legend if Offered Securities with Warrants that are not
immediately detachable.---
PRIOR TO [Date] THIS WARRANT CERTIFICATE CANNOT BE TRANSFERRED OR
EXCHANGED UNLESS ATTACHED TO A [Title of Offered Securities].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
BOATMEN'S BANCSHARES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. NEW YORK CITY TIME, ON ------------------.
No. ------------------ ------------------ Warrants
This certifies that ---------------------------- or registered
assigns is the registered owner of the above indicated number of
Warrants, each Warrant entitling such owner [if Offered Securities
---------------------
with Warrants that are not immediately detachable --, subject to
- -------------------------------------------------
the registered owner qualifying as a "holder" of this Warrant
Certificate, as hereinafter defined] to purchase, at any time after
5 p.m. New York City time, on ----------, ---------------- shares
of [Title of Warrant Securities] (the "Warrant Securities"), of
BOATMEN'S BANCSHARES, INC. (the "Corporation") on the following
basis: [during the period from ---------------, through and
including ------------------, the exercise price of each Warrant
will be -----------------; during the period from
- ---------------------, through and including ------------------,]
the exercise price of each Warrant will be ----------------- (the
"Warrant Price"). No adjustment shall be made for any dividends on
any Warrant Securities issuable upon exercise of any Warrant. The
holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying in
full [in lawful money of the United States of America] [in cash or
by certified check or official bank check or by bank wire transfer,
in each case,] [by bank wire transfer] in [immediately available]
[next-day] funds, the Warrant Price for each Warrant exercised to
the Warrant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof duly
executed, at the corporate trust office of [name of Warrant Agent],
[or ---------------], which is, on the date hereof, at the address
specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant
Agreement (as hereinafter defined).
A-1
<PAGE> 16
The term "holder" as used herein shall mean [if Offered
----------
Securities with Warrants that are not immediately detachable --,
- ------------------------------------------------------------
prior to -------------------- (the "Detachable Date"), the
registered owner of the Corporation's [title of Offered Securities]
to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time of this
Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to
Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in
registered form. Upon any exercise of fewer than all of the
Warrants evidence by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing
the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of -------------------- (the
"Warrant Agreement") by and between the Corporation and the Warrant
Agent and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the holder
of this Warrant Certificate consents by acceptance hereof. Copies
of the Warrant Agreement are on file at the above-mentioned office
of the Warrant Agent [and at -------------------].
[If Offered Securities with registered Warrants that are not
-----------------------------------------------------------
immediately detachable -- Prior to -------------------, this
- ----------------------
Warrant Certificate may be exchanged or transferred only together
with the [Title of Offered Securities] (the "Offered Securities")
to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange
or transfer of such Offered Security. After such date, this ]
[if Offered Securities with registered Warrants that are immediately
-------------------------------------------------------------------
detachable -- Transfer of this] Warrant Certificate may be
- ----------
registered when this Warrant Certificate is surrendered at the
corporate trust office of the Warrant Agent [or -------------] by
the registered owner or such owner's assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to
the limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants that are not immediately
------------------------------------------------------------
detachable -- Except as provided in the immediately preceding
- ----------
paragraph, after] [If Offered Securities with Warrants that are
--------------------------------------------
immediately detachable or Warrant alone -- After] countersignature
- ---------------------------------------
by the Warrant Agent and prior to the expiration of this Warrant
Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent [or ---------------]
for Warrant Certificates representing the same aggregate number of
Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities,
including, without limitation, the right to receive payments of
dividends or distributions, if any, on the Warrant Securities or to
exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
A-2
<PAGE> 17
Dated as of -----------------.
BOATMEN'S BANCSHARES, INC.
By: ---------------------------------
Attest:
- ------------------------------
Countersigned:
- ------------------------------
As Warrant Agent
By: --------------------------
Authorized Signature
A-3
<PAGE> 18
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder must pay
in United States dollars [in cash or by certified check or official
bank check or by bank wire transfer] [by bank wire transfer] in
[immediately available] [next-day] funds the Warrant Price in full
for Warrants exercised to [insert name of Warrant Agent] [Corporate
Trust Department] [insert address of Warrant Agent], Attn.
- -------------------- [or ---------------], which [payment] [wire
transfer] must specify the name of the holder and the number of
Warrants exercised by such holder. In addition, the holder must
complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is
recommended) to the Warrant Agent at the appropriate address set
forth below. This Warrant Certificate, completed and duly
executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
- ----------------- Warrants, evidenced by this Warrant Certificate,
to purchase ------------------ shares of the [Title of Warrant
Securities] (the "Warrant Securities") of BOATMEN'S BANCSHARES,
INC. and represents that the undersigned has tendered payment for
such Warrant Securities in Dollars [in cash or by certified check
or official bank check or by bank wire transfer, in each case] [by
bank wire transfer] in [immediately available] [next-day] funds to
the order of BOATMEN'S BANCSHARES, INC. c/o [insert name and
address of Warrant Agent], in the amount of ---------------- in
accordance with the terms hereof. The undersigned requests that
said amount of Warrant Securities be in fully registered form in
the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions set
forth below.
A-4
<PAGE> 19
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new
Warrant Certificate representing the remaining Warrant evidenced
hereby be issued and delivered to the undersigned unless otherwise
specified in the instruction below.
Dated: ------------------------- Name -----------------------------
- -------------------------------- Address --------------------------
(Insert Social Security or
Other Identifying Number of
Holder) ----------------------------------
Signature Guaranteed (Signature must conform in all
respects to name of holder as
- -------------------------------- specified on the face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York Stock
Exchange)
The Warrants evidenced hereby may be exercised at the
following address:
By hand at ------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
By mail at ------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-5
<PAGE> 20
ASSIGNMENT
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ----------------------------------------------
hereby sells, assigns and transfer unto
- ---------------------------------- ------------------------------
(Please print name) (Please insert social security
or other identifying number)
- ----------------------------------
(Address)
- ----------------------------------
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does
hereby irrevocably constitute and appoint ------------------ as
Attorney to transfer said Warrant Certificate on the books of the
Warrant Agent with full power of substitution in the premises.
Dated:
----------------------------------------
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York Stock Exchange)
Signature Guaranteed
- ----------------------------------
A-6
<PAGE> 1
April 11, 1994
Board of Directors
Boatmen's Bancshares, Inc.
One Boatmen's Plaza
800 Market Street
St. Louis, Missouri 63101
RE: Registration on Form S-3 of $500,000,000 of Debt
Securities, Preferred Stock, Depositary Shares,
Common Stock and Warrants ("Registration Statement")
Gentlemen:
In connection with the registration under the Securities Act
of 1933, as amended (the "Act") by Boatmen's Bancshares, Inc., a
Missouri corporation (the "Corporation") of an aggregate amount not
to exceed $500,000,000 of (i) unsecured debt securities of the
Corporation ("Debt Securities"), (ii) shares of preferred stock, no
par value ("Preferred Stock"), (iii) depositary shares representing
fractional interests in Preferred Stock ("Depositary Shares"), (iv)
shares of common stock, par value $1.00 per share ("Common Stock"),
and (v) warrants to purchase Debt Securities, Preferred Stock,
Depositary Shares or Common Stock ("Warrants") (the Debt
Securities, Preferred Stock, Depositary Shares, Common Stock and
Warrants are collectively referred to herein as the "Securities"),
for offering on a continued or delayed basis pursuant to the
provisions of Rule 415 of the Act, you have requested that we
furnish you with our opinion as to the legality of the issuance of
the Securities.
The Securities are to be issued and sold from time to time as
set forth in the Registration Statement, the prospectus contained
therein (the "Base Prospectus") and the supplements thereto (the
"Prospectus Supplements").
As counsel to the Corporation, we have participated in the
preparation of the Registration Statement and the Base Prospectus.
We have examined and are familiar with the Corporation's Restated
Articles of Incorporation and Amended Bylaws, each as amended,
records of the corporate proceedings heretofore taken, the
Registration Statement, the Base Prospectus, the Indenture dated as
of October 2, 1989 between the Corporation and Chemical Bank (f/k/a
Manufacturers Hanover Trust Company), as Trustee, and the
supplements thereto, including the proposed supplement in the form
of Exhibit 4(b) to the Registration Statement (such Indenture
together with all such supplements being referred to as the
"Subordinated Indenture"), the
<PAGE> 2
Boatmen's Bancshares, Inc.
April 11, 1994
Page 2
Indenture in the form of Exhibit
4(a) to the Registration Statement to be executed by the
Corporation and Chemical Bank, as Trustee (the "Senior Indenture"),
and such other documents and records as we have deemed necessary
for purposes of this opinion.
In connection with this opinion, we have assumed that (i) the
Registration Statement, and any amendment thereto, will have become
effective; (ii) a Prospectus Supplement will have been prepared and
filed with the Securities and Exchange Commission describing the
Securities offered thereby; (iii) all Securities will be issued and
sold in compliance with applicable federal and state securities
laws and in the manner described in the Registration Statement and
the applicable Prospectus Supplement; (iv) a definitive purchase,
underwriting or similar agreement with respect to any Securities
offered (hereafter an "Underwriting Agreement") will have been duly
authorized and validly executed and delivered by the Corporation
and the other parties thereto; and (v) any Securities issuable upon
conversion, exchange or exercise of any Securities being offered
will be duly authorized, created and, if appropriate, reserved for
issuance upon such conversion, exchange or exercise.
Based upon and subject to the foregoing, we are the opinion
that:
1. With respect to Debt Securities to be issued under the
Senior Indenture, when (i) the Senior Indenture has been duly
authorized and validly executed and delivered by the Corporation
and the Trustee; (ii) the Senior Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended; (iii) the Board
of Directors of the Corporation or, to the extent permitted by
Section 351.330 of The General and Business Corporation Law of
Missouri, a duly constituted and acting committee thereof (such
Board of Directors or committee thereof being hereafter referred to
as the "Board") has taken all necessary corporate action to approve
the issuance and terms of such Debt Securities, the terms of the
offering thereof and related matters; and (iv) such Debt Securities
have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Senior Indenture and the
applicable Underwriting Agreement upon payment of the consideration
provided for therein, such Debt Securities will be legally issued
and binding obligations of the Corporation, except as the same may
be limited by insolvency, bankruptcy, reorganization, moratorium or
other laws relating to or affecting the enforcement of creditors
rights or by general equity principles.
2. With respect to Debt Securities to be issued under the
Subordinated Indenture, when (i) the Board has taken all necessary
corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters;
and (ii) such Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with the
provisions of the Subordinated Indenture and the applicable
Underwriting Agreement upon payment of the consideration provided
for therein, such Debt Securities will be legally issued and
binding obligations of the Corporation, except as the same may be
limited by insolvency,
<PAGE> 3
Boatmen's Bancshares, Inc.
April 11, 1994
Page 3
bankruptcy, reorganization, moratorium or
other laws relating to or affecting the enforcement of creditors
rights or by general equity principles.
3. With respect to shares of Preferred Stock, when (i) the
Board has taken all necessary corporate action to approve the
issuance and terms of such Preferred Stock, the terms of the
offering thereof and related matters, including adoption of a
Certificate of Designation relating to such Preferred Stock and the
filing thereof with the Secretary of State of the State of
Missouri; and (ii) certificates representing the shares of
Preferred Stock have been duly executed, countersigned, registered
and delivered either (y) in accordance with the provisions of the
applicable Underwriting Agreement upon payment of the consideration
provided for therein, or (z) upon conversion or exercise of any
other Securities, in accordance with the terms of such other
Securities or the instrument governing such other Securities and
providing for such conversion or exercise, the shares of Preferred
Stock will be legally issued, fully paid and non-assessable.
4. With respect to Depositary Shares, when (i) the Board has
taken all necessary corporate action to approve the issuance and
terms of the Depositary Shares, the terms of the offering thereof
and related matters, including adoption of a Certificate of
Designation relating to the Preferred Stock underlying such
Depositary Shares and the filing thereof with the Secretary of
State of the State of Missouri; (ii) the Depositary Agreement or
Agreements relating to the Depositary Shares and the related
Depositary Receipts have been duly authorized and validly executed
and delivered by the Corporation and the Depositary appointed by
the Corporation; (iii) the shares of Preferred Stock underlying
such Depositary Shares have been deposited with a qualifying bank
or trust company under the applicable Depositary Agreements; and
(iv) the Depositary Receipts representing the Depositary Shares
have been duly executed, countersigned, registered and delivered in
accordance with the applicable Depositary Agreement and either (y)
the provisions of the applicable Underwriting Agreement upon
payment of the consideration provided for therein, or (z) the terms
of any other Securities, or the instrument governing any such other
Securities and providing for conversion or exercise of such other
Securities for Depositary Shares, the Depositary Shares will be
legally issued, fully paid and non-assessable.
5. With respect to shares of Common Stock, when (i) the Board
has taken all necessary corporate action to approve the issuance of
such Common Stock, the terms of the offering thereof and related
matters; and (ii) certificates representing the shares of Common
Stock have been duly executed, countersigned, registered and
delivered either (y) in accordance with the provisions of the
applicable Underwriting Agreement upon payment of the consideration
provided for therein (which shall not be less than the par value of
the Common Stock), or (z) upon conversion or exercise of any other
Securities, in accordance with the terms of such other Securities
or the instrument governing such other Securities and providing for
such conversion
<PAGE> 4
Boatmen's Bancshares, Inc.
April 11, 1994
Page 4
or exercise (for a consideration not less than the
par value of the Common Stock), the shares of Common Stock will be
legally issued, fully paid and non-assessable.
6. With respect to Warrants, when (i) the Board has taken all
necessary corporate action to approve the issuance and terms of the
Warrants, the terms of the offering thereof and related matters;
(ii) the Warrant Agreement or Agreements relating to the Warrants
have been duly authorized and validly executed and delivered by the
Corporation and the Warrant Agent appointed by the Corporation; and
(iii) the Warrants or certificates representing the Warrants have
been duly executed, countersigned, registered and delivered in
accordance with the applicable Warrant Agreement and the provisions
of the applicable Underwriting Agreement or Agreements upon payment
of the consideration provided for therein, the Warrants will be
legally issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Sincerely,
LEWIS, RICE & FINGERSH
/s/ Lewis, Rice & Fingersh
LLD
JMD
<PAGE> 1
<TABLE>
EARNINGS TO FIXED CHARGES
- -------------------------
<CAPTION>
EXCLUDING INTEREST ON DEPOSITS AS A
FIXED CHARGE
(IN THOUSANDS) 1993 1992 1991 1990 1989
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
INCOME BEFORE INCOME TAXES 464,226 321,244 231,211 181,393 207,828
-------------------------------------------------------------------
FIXED CHARGES
INTEREST ON FED FUNDS PURCH
AND OTHER SHORT-TERM BORR 62,367 73,348 119,787 194,418 195,436
INTEREST ON CAP LEASE OBLIG 3,858 3,929 3,994 4,042 4,106
INTEREST ON LONG TERM DEBT 36,905 30,601 27,248 28,113 29,421
INTEREST COMPONENT OF LEASES
(1/3 OF RENT EXPENSE) 11,300 11,092 9,593 8,831 8,083
-------------------------------------------------------------------
TOTAL FIXED CHARGES 114,430 118,970 160,622 235,404 237,046
-------------------------------------------------------------------
EARNS BEFORE INC TAX AND
FIXED CHARGES 578,656 440,214 391,833 416,797 444,874
===================================================================
RATIO OF EARNINGS TO FIXED
CHARGES 5.06 3.70 2.44 1.77 1.88
===================================================================
<CAPTION>
INCLUDING INTEREST ON DEPOSITS AS A
FIXED CHARGE
(IN THOUSANDS) 1993 1992 1991 1990 1989
-------------------------------------------------------------------
FIXED CHARGES, AS ABOVE 114,430 118,970 160,622 235,404 237,046
INTEREST ON DEPOSITS 528,844 629,655 850,086 860,577 846,078
-------------------------------------------------------------------
TOTAL FIXED CHARGES 643,274 748,625 1,010,708 1,095,981 1,083,124
-------------------------------------------------------------------
EARNS BEFORE INC TAX AND
FIXED CHARGES 578,656 440,214 391,833 416,797 444,874
INTEREST ON DEPOSITS 528,844 629,655 850,086 860,577 846,078
-------------------------------------------------------------------
EARNS BEFORE INC TAX AND
FIXED CHARGES 1,107,500 1,069,869 1,241,919 1,277,374 1,290,952
===================================================================
RATIO OF EARNINGS TO FIXED
CHARGES 1.72 1.43 1.23 1.17 1.19
===================================================================
</TABLE>
<PAGE> 2
<TABLE>
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
- ----------------------------------------------------------------
<CAPTION>
EXCLUDING INTEREST ON DEPOSITS AS A
FIXED CHARGE
(IN THOUSANDS) 1993 1992 1991 1990 1989
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
INCOME BEFORE INCOME TAXES 464,226 321,244 231,211 181,393 207,828
-------------------------------------------------------------------
FIXED CHARGES
INTEREST ON FED FUNDS PURCH
AND OTHER SHORT-TERM BORR 62,367 73,348 119,787 194,418 195,436
INTEREST ON CAP LEASE OBLIG 3,858 3,929 3,994 4,042 4,106
INTEREST ON LONG TERM DEBT 36,905 30,601 27,248 28,113 29,421
INTEREST COMPONENT OF LEASES
(1/3 OF RENT EXPENSE) 11,300 11,092 9,593 8,831 8,083
-------------------------------------------------------------------
TOTAL FIXED CHARGES 114,430 118,970 160,622 235,404 237,046
PREFERRED DIVIDENDS PRETAX 131 133 135 147 3,398
-------------------------------------------------------------------
TL FIXED CHGS & PREF DIV 114,561 119,103 160,757 235,551 240,444
-------------------------------------------------------------------
EARNS BEFORE INC TAX AND
FIXED CHARGES 578,656 440,214 391,833 416,797 444,874
===================================================================
RATIO OF EARNINGS TO FIXED
CHARGES & PREF DIV 5.05 3.70 2.44 1.77 1.85
===================================================================
<CAPTION>
INCLUDING INTEREST ON DEPOSITS AS A
FIXED CHARGE
(IN THOUSANDS) 1993 1992 1991 1990 1989
-------------------------------------------------------------------
FIXED CHARGES, AS ABOVE 114,430 118,970 160,622 235,404 237,046
INTEREST ON DEPOSITS 528,844 629,655 850,086 860,577 846,078
-------------------------------------------------------------------
TOTAL FIXED CHARGES 643,274 748,625 1,010,708 1,095,981 1,083,124
PREFERRED DIVIDENDS PRETAX 131 133 135 147 3,398
-------------------------------------------------------------------
TL FIXED CHGS & PREF DIV 643,405 748,758 1,010,843 1,096,128 1,086,522
-------------------------------------------------------------------
EARNS BEFORE INC TAX AND
FIXED CHARGES 578,656 440,214 391,833 416,797 444,874
INTEREST ON DEPOSITS 528,844 629,655 850,086 860,577 846,078
-------------------------------------------------------------------
EARNS BEFORE INC TAX AND
FIXED CHARGES 1,107,500 1,069,869 1,241,919 1,277,374 1,290,952
===================================================================
RATIO OF EARNINGS TO FIXED
CHARGES & PREF DIV 1.72 1.43 1.23 1.17 1.19
===================================================================
</TABLE>
<PAGE> 1
Exhibit 23(a)
CONSENT OF ERNST & YOUNG
We consent to the reference to our firm under the caption "Experts"
in the Registration Statement (Form S-3) and related Prospectus of
Boatmen's Bancshares, Inc. for the registration of $500 million of
equity and debt securities and to the incorporation by reference
therein of our report dated January 20, 1994, with respect to the
consolidated financial statements of Boatmen's Bancshares, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the
year ended December 31, 1993, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young
St. Louis, Missouri
April 13, 1994
<PAGE> 1
Exhibit 23(b)
CONSENT OF KPMG PEAT MARWICK
The Board of Directors
Boatmen's Bancshares, Inc.
We consent to the incorporation by reference in the registration
statement on Form S-3 of Boatmen's Bancshares, Inc. of our report
dated January 31, 1992, relating to the consolidated income
statement and statements of changes in stockholders' equity and
cash flows of First Interstate of Iowa, Inc. and subsidiaries for
the year ended December 31, 1991, which report appears in the
December 31, 1993 annual report on Form 10-K of Boatmen's
Bancshares, Inc. and to the reference to our Firm under the heading
"Experts" in the Prospectus.
/s/ KPMG Peat Marwick
KPMG Peat Marwick
Des Moines, Iowa
April 13, 1994
<PAGE> 1
Exhibit 23(c)
CONSENT OF KPMG PEAT MARWICK
The Board of Directors
Boatmen's Bancshares, Inc.
We consent to the incorporation by reference in the registration
statement on Form S-3 of Boatmen's Bancshares, Inc. of our report
dated March 5, 1992, relating to the consolidated statements of
operations, changes in stockholders' equity and cash flows of
Sunwest Financial Services, Inc. and subsidiaries for the year
ended December 31, 1991, which report appears in the December 31,
1993 annual report on Form 10-K of Boatmen's Bancshares, Inc. and
to the reference to our Firm under the heading "Experts" in the
Prospectus.
/s/ KPMG Peat Marwick
KPMG Peat Marwick
Albuquerque, New Mexico
April 13, 1994
<PAGE> 1
EXHIBIT 23(d)
CONSENT OF KPMG PEAT MARWICK
The Board of Directors
Boatmen's Bancshares, Inc.
We consent to the incorporation by reference in the registration statement
on Form S-3 of Boatmen's Bancshares, Inc. of our report dated January 24,
1992, except for Note 23 which is as of February 24, 1992, relating to
the consolidated statements of income, stockholders' equity and cash flows
of First Amarillo Bancorporation, Inc. and subsidiaries for the year ended
December 31, 1991, which report appears in the December 31, 1993 annual
report on Form 10-K of Boatmen's Bancshares, Inc. and to the reference to
our Firm under the heading "Experts" in the Prospectus.
/s/ KPMG Peat Marwick
KPMG Peat Marwick
Amarillo, Texas
April 13, 1994
<PAGE> 1
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ Andrew B. Craig III
---------------------------------
Andrew B. Craig III
<PAGE> 2
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ James W. Kienker
---------------------------------
James W. Kienker
<PAGE> 3
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ Samuel B. Hayes III
---------------------------------
Samuel B. Hayes III
<PAGE> 4
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 6, 1994.
/s/ John Peters MacCarthy
---------------------------------
John Peters MacCarthy
<PAGE> 5
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ Richard L. Battram
---------------------------------
Richard L. Battram
<PAGE> 6
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ B. A. Bridgewater, Jr.
---------------------------------
B. A. Bridgewater, Jr.
<PAGE> 7
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 6, 1994.
/s/ Ilus W. Davis
---------------------------------
Ilus W. Davis
<PAGE> 8
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ Michael G. Fitt
---------------------------------
Michael G. Fitt
<PAGE> 9
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 7, 1994.
/s/ John E. Hayes, Jr.
---------------------------------
John E. Hayes, Jr.
<PAGE> 10
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ Ike Kalangis
---------------------------------
Ike Kalangis
<PAGE> 11
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ Lee M. Liberman
---------------------------------
Lee M. Liberman
<PAGE> 12
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ William E. Maritz
---------------------------------
William E. Maritz
<PAGE> 13
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ Andrew E. Newman
---------------------------------
Andrew E. Newman
<PAGE> 14
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 6, 1994.
/s/ Jerry E. Ritter
---------------------------------
Jerry E. Ritter
<PAGE> 15
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 5, 1994.
/s/ William P. Stiritz
---------------------------------
William P. Stiritz
<PAGE> 16
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 6, 1994.
/s/ Albert E. Suter
---------------------------------
Albert E. Suter
<PAGE> 17
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 8, 1994.
/s/ Dwight D. Sutherland
---------------------------------
Dwight D. Sutherland
<PAGE> 18
POWER OF ATTORNEY
1933 ACT REGISTRATION STATEMENTS
OF
BOATMEN'S BANCSHARES, INC.
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints ANDREW B.
CRAIG III, JAMES W. KIENKER and PHILIP N. McCARTY, and each of
them, the true and lawful attorneys-in-fact and agents for him and
in his name, place and stead, in any and all capacities, to sign
and file, or cause to be signed and filed, with the Securities and
Exchange Commission (the "Commission"), any registration statement
or statements on Form S-3 under the Securities Act of 1933, as
amended, relating to the issuance of (i) unsecured debt securities
of Boatmen's Bancshares, Inc. ("Debt Securities") consisting of
debentures, notes or other unsecured evidences of indebtedness, in
one or more series, (ii) shares of preferred stock, no par value,
of Boatmen's Bancshares, Inc. ("Preferred Stock"), in one or more
series, (iii) depositary shares of Boatmen's Bancshares, Inc.
("Depositary Shares") evidenced by depositary receipts and
evidencing fractional interests in shares of Preferred Stock, (iv)
shares of common stock, par value $1.00 per share, of Boatmen's
Bancshares, Inc. ("Common Stock"), or (v) warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or
some combination thereof, or any combination of the foregoing, at
an aggregate initial price not to exceed $500,000,000, and any and
all amendments and supplements thereto, before or after
effectiveness of such statements, and any and all other documents
required to be filed with the Commission in connection therewith,
granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and ratifying and
confirming all that said attorneys-in-fact and agents may lawfully
do or cause to be done by virtue hereof.
Dated April 4, 1994.
/s/ Theodore C. Wetterau
---------------------------------
Theodore C. Wetterau
<PAGE> 1
---------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-----------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)-------
-----------------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-----------------------------------------------
Boatmen's Bancshares, Inc.
(Exact name of obligor as specified in its charter)
Missouri 43-0672260
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One Boatmen's Plaza
800 Market Street
St. Louis, MO 63101
(Address of principal executive offices) (Zip Code)
-----------------------------------------
Debt Securities
(Title of the indenture securities)
--------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject. New York State Banking
Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551 and Federal Reserve Bank of New
York, District No. 2, 33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
2
<PAGE> 3
Item 16. List of Exhibits.
List below all exhibits filed as part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee
as now in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31, 1977,
December 31, 1980, September 9, 1982, February 28, 1985 and
December 2, 1991 (see Exhibit 1 to Form T-1 filed in connection
with Registration Statement No. 33-50010, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee
to Commence Business (see Exhibit 2 to Form T-1 filed in connection
with Registration Statement No. 33-50010, which is incorporated by
reference).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1 and
2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 33-46892, which is incorporated by reference).
6. The consent of the Trustee required by Section 321(b)
of the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
7. A copy of the latest report of condition of the
Trustee, published pursuant to law or the requirements of its
supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, Chemical Bank, a corporation organized and
existing under the laws of the State of New York, has duly caused
this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York
and State of New York, on the 6TH day of APRIL, 1994.
CHEMICAL BANK
By /s/ T. C. Knight
---------------------------------
T. C. Knight
Assistant Vice President
3
<PAGE> 4
Exhibit 7 to Form T--1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1993, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,371
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . 5,829
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,834
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold. . . . . . . . . . . . . . . . . . . . . . . . . . . 2,125
Securities purchased under agreements to resell . . . . . . . . . . . . 900
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . $60,826
Less: Allowance for loan and lease losses . . . . . . . 2,326
Less: Allocated transfer risk reserve . . . . . . . . . 121
-------
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . . . . . . . 58,379
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . 8,556
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,238
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . 713
Investments in unconsolidated subsidiaries and
associated companies. . . . . . . . . . . . . . . . . . . . . . . . . . 112
Customer's liability to this bank on acceptance
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,063
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,864
------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $115,510
========
4
<PAGE> 5
<CAPTION>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . $51,611
Noninterest-bearing. . . . . . . . . . . . . . . . . . . $19,050
Interest-bearing . . . . . . . . . . . . . . . . . . . . 32,561
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,886
Noninterest-bearing. . . . . . . . . . . . . . . . . . . $ 136
Interest-bearing . . . . . . . . . . . . . . . . . . . . 24,750
-------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . 8,496
Securities sold under agreements to repurchase. . . . . . . . . . . . . 514
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . 1,501
Other Borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,538
Mortgage indebtedness and obligations under capitalized
leases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Bank's liability on acceptances executed and outstanding . . . . . . . . . . 1,084
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . . 3,500
Other liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,419
TOTAL LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107,569
=======
<CAPTION>
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620
Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,501
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . 2,663
Less: Net unrealized loss on marketable equity
securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (159)
Cumulative foreign currency translation adjustments . . . . . . . . . . . . (2)
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,941
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL. . . . . . . . . . . . . . . . . . . . . . . . $115,510
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition is true and correct to the best of my knowledge
and belief.
JOSEPH L. SCLAFANI
5
<PAGE> 6
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We
declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in confor-
mance with the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER ) DIRECTORS
WILLIAM B. HARRISON )
