SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: January 26, 1995
(Date of earliest event reported)
SHAWMUT NATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 1-10102 06-1212629
(State of (Commission File No.) (I.R.S. Employer
Incorporation) Identification No.)
777 Main Street, Hartford, Connecticut 06115
One Federal Street, Boston, Massachusetts 02211
(Address of principal executive offices, including zip codes)
(203) 986-2000
(617) 292-2000
(Registrant's telephone numbers, including area codes)
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
1.01 Underwriting Agreement, dated January 19, 1995,
between the Registrant and Goldman, Sachs &
Co., ourselves and the several Underwriters named
therein, relating to the offer and sale of
5,000,000 Depositary Shares (the "Depositary
Shares") each representing a one-tenth interest in
a share of 9.35% Cumulative Preferred Stock (the
"Preferred Stock").
4.01 Form of the Preferred Stock Certificate.
4.02 Form of Depositary Receipt evidencing the
Depositary Shares.
4.03 Deposit Agreement, dated as of January 26, 1995,
among the Registrant, Chemical Bank, as
Depositary, and the holders from time to time of
Depositary Receipts.
4.04 Certificate of Designation, dated January 26,
1995, setting forth the terms of the Preferred
Stock.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
SHAWMUT NATIONAL CORPORATION
Dated: January 26, 1995 By: /s/ Joel B. Alvord
Name: Joel B. Alvord
Title: Chairman and Chief
Executive Officer
Index of Exhibits
1.01 Underwriting Agreement, dated January 19, 1995, be
tween the Registrant and Goldman, Sachs & Co., ourselves
and the several Underwriters named therein, relating
to the offer and sale of 5,000,000 Depositary Shares
(the "Depositary Shares") each representing a one-
tenth interest in a share of 9.35% Cumulative Pre
ferred Stock (the "Preferred Stock").
4.01 Form of the Preferred Stock Certificate.
4.02 Form of Depositary Receipt evidencing the Depositary
Shares.
4.03 Deposit Agreement, dated as of January 26, 1995, among
the Registrant, Chemical Bank, as Depositary, and the
holders from time to time of Depositary Receipts.
4.04 Certificate of Designation, dated January 26, 1995,
setting forth the terms of the Preferred Stock.
UNDERWRITING AGREEMENT
January 19, 1995
Shawmut National Corporation
777 Main Street
Hartford, Connecticut 06115
Dear Sirs:
We (the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named
below (such underwriter or underwriters being herein called
the "Underwriters"), and we understand that Shawmut National
Corporation, a Delaware corporation (the "Company"),
proposes to sell 5,000,000 depositary shares (the "Firm
Offered Securities"), each representing a one-tenth interest
in its 9.35% Cumulative Preferred Stock, without par value,
stated value $250 per share. The Company also proposes to
sell not more than an additional 750,000 depositary shares
(the "Additional Offered Securities"), each representing a
one-tenth interest in its 9.35% Cumulative Preferred Stock,
without par value, stated value $250 per share, if and to
the extent that we shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such
Additional Offered Securities referred to below. The Firm
Offered Securities and the Additional Offered Securities are
hereinafter collectively referred to as the "Offered
Securities" or as the "Depositary Shares". The Depositary
Shares will be issued by Chemical Bank (the "Depositary")
pursuant to the terms of a Deposit Agreement (the "Deposit
Agreement") to be entered into among the Company, the
Depositary and the holders from time to time of Depositary
Receipts (as defined below) issued thereunder. The
Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement (the "Depositary
Receipts"). The shares of the Company's 9.35% Cumulative
Preferred Stock, without par value, stated value $250 per
share, relating to the Depositary Shares are hereinafter
referred to as the "Underlying Preferred Shares".
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees
to sell and the Underwriters agree to purchase, severally
and not jointly, the number of Firm Offered Securities set
forth below opposite their names at $24.2125 per share plus
accrued dividends, if any, from January 26, 1995 to the date
of payment and delivery:
Number of Firm
Offered Securities
Underwriters To Be Purchased
Goldman, Sachs & Co. 610,000
Donaldson, Lufkin & Jenrette Securities
Corporation 610,000
Lehman Brothers Inc. 610,000
Morgan Stanley & Co. Incorporated 610,000
PaineWebber Incorporated 610,000
Smith Barney Inc. 610,000
Bear, Stearns & Co. Inc. 70,000
CS First Boston Corporation 70,000
Alex. Brown & Sons Incorporated 70,000
Dillon, Read & Co. Inc. 70,000
A.G. Edwards & Sons, Inc. 70,000
Kemper Securities, Inc. 70,000
Prudential Securities Incorporated 70,000
Salomon Brothers Inc 70,000
Advest, Inc. 30,000
J.C. Bradford & Co. 30,000
Commerzbank Capital Markets Corporation 30,000
Craigie Incorporated 30,000
Credit Lyonnais Securities (USA) Inc. 30,000
Dain Bosworth Incorporated 30,000
Doft & Co., Inc. 30,000
First Albany Corporation 30,000
First of Michigan Corporation 30,000
Gruntal & Co., Incorporated 30,000
Interstate/Johnson Lane Corporation 30,000
Janney Montgomery Scott Inc. 30,000
Legg Mason Wood Walker, Incorporated 30,000
McDonald & Company Securities, Inc. 30,000
Montgomery Securities 30,000
Morgan Keegan & Company, Inc. 30,000
Olde Discount Corporation 30,000
Piper Jaffray Inc. 30,000
Raymond James & Associates, Inc. 30,000
The Robinson-Humphrey Company, Inc. 30,000
Rodman & Renshaw, Inc. 30,000
Roney & Co. 30,000
Muriel Siebert & Co., Inc. 30,000
Stifel, Nicolaus & Company,
Incorporated 30,000
U.S. Clearing Corp. 30,000
Wheat, First Securities, Inc. 30,000
Total 5,000,000
The Underwriters will pay for such Firm Offered
Securities upon delivery thereof at the office of Goldman,
Sachs & Co., New York, New York, at 10:00 a.m. (New York
time) on January 26, 1995, or at such other time, not later
than 5:00 p.m. (New York time) on January 26, 1995, as shall
be designated by us. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date".
Subject to the terms and conditions set forth
herein and incorporated by reference herein, the Company
hereby agrees to sell to the Underwriters the Additional
Offered Securities, and the Underwriters shall have a
onetime right to purchase, severally and not jointly, up to
750,000 Additional Offered Securities at the purchase price
set forth above plus accrued dividends, if any. Additional
Offered Securities may be purchased solely for the purpose
of covering over-allotments made in connection with the
offering of the Firm Offered Securities. If any Additional
Offered Securities are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of
Additional Offered Securities (subject to such adjustments
to eliminate fractional shares as we may determine) that
bears the same proportion to the total number of Additional
Offered Securities to be purchased as the number of Firm
Offered Securities set forth above opposite the name of such
Underwriter bears to the total number of Firm Offered
Securities.
The Underwriters will pay for any Additional
Offered Securities upon delivery thereof at the office of
Goldman, Sachs & Co., New York, New York, at 10:00 a.m. (New
York time) on such date (which may be the same as the
Closing Date but shall in no event be earlier than the
Closing Date nor later than ten business days after the
giving of the notice hereinafter referred to) as shall be
designated in a written notice from us to the Company of our
determination, on behalf of the Underwriters, to purchase a
number, specified in such notice, of Additional Offered
Securities. The time and date of such payment are
hereinafter referred to as the "Option Closing Date". The
notice of the determination to exercise the option to
purchase Additional Offered Securities may be given at any
time within 30 days after the date of this Agreement. The
several obligations of the Underwriters to purchase
Additional Offered Securities are subject to the delivery to
us on the Option Closing Date of such documents as we may
reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the
Additional Offered Securities, the Underlying Preferred
Shares and other matters related to the issuance of the
Additional Offered Securities and the Underlying Preferred
Shares.
The Offered Securities and the Underlying
Preferred Shares shall have the terms set forth in the
Prospectus dated February 8, 1994 and the Prospectus
Supplement dated January 19, 1995, including the following:
Terms of Underlying Preferred Shares
Dividends: Cumulative
Rate: 9.35% of the stated value per annum
per share (equivalent to $23.375
per annum per Underlying Preferred
Share)
Dividend Payment Dates: January 15, April 15, July 15 and
October 15, commencing April 15,
1995
Record Dates: Such dates, not more than 60 days
nor less than 10 days preceding the
Dividend Payment Dates, as shall be
fixed by the Board of Directors of
the Company or a committee thereof
Liquidation Preference: $250 per share (equivalent to $25
per Depositary Share)
Redemption: The Underlying Preferred Shares
will not be redeemable prior to
January 15, 2000. On or after such
date, the Underlying Preferred
Shares will be redeemable at the
option of the Company, in whole or
in part, upon not less than 30 nor
more than 60 days' notice, at a
redemption price of $250.00 per
share plus dividends accrued and
accumulated but unpaid to the
redemption date
Terms of Depositary Shares
Dividends: Cumulative
Rate: 9.35% of the proportionate stated
value of the Underlying Preferred
Shares per annum per share
(equivalent to $2.3375 per annum
per Depositary Share)
Dividend Payment Dates: January 15, April 15, July 15 and
October 15, commencing April 15,
1995
Record Dates: Such record dates as fixed by the
Board of Directors of the Company
or a committee thereof for the
Underlying Preferred Shares
Liquidation Preference: $25 per share
Redemption: Redeemable using the cash proceeds
received by the Depositary
resulting from any redemption of
Underlying Preferred Shares held by
the Depositary, at a redemption
price of $25.00 per share, plus
accrued and accumulated but unpaid
dividends on the Underlying
Preferred Shares
All the provisions contained in the document
entitled Shawmut National Corporation Underwriting Agreement
Standard Provisions (Preferred Stock and Depositary Shares)
dated January 19, 1995 (the "Standard Provisions"), a copy
of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part
of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that if any term
defined in such document is otherwise defined herein, the
definition set forth herein shall control.
Please confirm your agreement by having an
authorized officer sign a copy of this Agreement in the
space set forth below.
Very truly yours,
GOLDMAN, SACHS & CO.
On behalf of themselves and the other
Underwriters named herein
____________________________________
(Goldman, Sachs & Co.)
Accepted January 19, 1995:
SHAWMUT NATIONAL CORPORATION
By:
Name:
Title:
____________________________________________________________________
SHAWMUT NATIONAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK AND DEPOSITARY SHARES)
January 19, 1995
From time to time, Shawmut National Corporation, a
Delaware corporation (the "Company"), may enter into one or
more underwriting agreements that provide for the sale of
designated securities to the several underwriters named
therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement
(an "Underwriting Agreement"). The Underwriting Agreement,
including the provisions incorporated therein by reference,
is herein referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein
defined.
The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement including a prospectus relating to the Offered
Securities and the Underlying Preferred Shares and has filed
with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities
and the Underlying Preferred Shares pursuant to Rule 424
under the Securities Act of 1933, as amended (the
"Securities Act"). The term Registration Statement means
the registration statement as amended to the date of this
Agreement. The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus
means the Basic Prospectus together with the Prospectus
Supplement. The term preliminary prospectus means a
preliminary prospectus supplement specifically relating to
the Offered Securities and the Underlying Preferred Shares
together with the Basic Prospectus. As used herein, the
terms "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include in each case the documents, if
any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall
include all documents deemed to be incorporated by reference
in the Prospectus that are filed subsequent to the date of
the Basic Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
1. Representations and Warranties. The Company
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, to
the knowledge of the Company, threatened by the
Commission.
(b) (i) 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, (ii) the
Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain
and, as amended or supplemented, if applicable, 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, except that
the representations and warranties set forth in this
paragraph 1(b) do not apply to statements or omissions
in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through
the Manager expressly for use therein.
(c) The Company has been duly incorporated, is
validly existing as a corporation in good standing
under the laws of the State of Delaware, has the
corporate power and authority to own its property and
to conduct its business as described in the Prospectus
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 Company
and its subsidiaries, taken as a whole.
(d) Each of Shawmut Bank, National Association
and Shawmut Bank Connecticut, National Association
(each a "Principal Subsidiary") has been duly
incorporated or organized, is validly existing as a
national bank in good standing under the laws of the
United States of America, has the corporate or other
power and authority to own its property and to conduct
its business as described in the Prospectus 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 Company
and its subsidiaries, taken as a whole.
(e) Each of the authorized capital stock of the
Company, the Offered Securities, the Underlying
Preferred Shares, the Depositary Receipts and the
Deposit Agreement conforms as to legal matters to the
description thereof contained in the Prospectus.
(f) The Preferred Shares or the Underlying
Preferred Shares, as the case may be, have been duly
authorized and, when such shares are issued and
delivered as contemplated by the terms of this
Agreement, such shares will be validly issued, fully
paid and non-assessable, and the issuance of such
shares will not be subject to any preemptive or similar
rights.
(g) The deposit of the Underlying Preferred
Shares by the Company in accordance with the Deposit
Agreement has been duly authorized and, when the
Depositary Shares are issued in accordance with the
terms of this Agreement and the Deposit Agreement, the
Depositary Shares will represent legal and valid
interests in the Underlying Preferred Shares.
(h) Assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary,
each Depositary Share will represent the interest
described in the Prospectus in an Underlying Preferred
Share; assuming due execution and delivery of the
Depositary Receipts by the Depositary pursuant to the
Deposit Agreement, the Depositary Receipts will entitle
the persons in whose names such Depositary Receipts are
registered to the benefits of registered holders of
Depositary Receipts provided therein and in the Deposit
Agreement.
(i) This Agreement has been duly authorized,
executed and delivered by the Company.
(j) The Deposit Agreement has been duly
authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery
thereof by the Depositary, is a valid and binding
agreement of the Company, enforceable in accordance
with its terms, except (i) to the extent that
enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors'
rights generally and (B) general principals of equity
(regardless of whether enforceability is considered in
a proceeding at law or in equity) and (ii) no
representation is made regarding the enforceability of
provisions relating to indemnification or contribution.
(k) The execution and delivery by the Company of,
and the performance by the Company of its obligations
under, this Agreement, the Certificate of Designation
relating to the Preferred Shares or the Underlying
Preferred Shares, as the case may be (the "Certificate
of Designation"), and the Deposit Agreement will not
contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to
the Company and its subsidiaries, taken as a whole, or
any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization
or order of or qualification with any governmental body
or agency is required for the performance by the
Company of its obligations under this Agreement, the
Certificate of Designation and the Deposit Agreement,
except 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.
(l) There has not occurred any material adverse
change, or, to the knowledge of the Company, any
development involving a prospective material adverse
change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth
in the Prospectus.
(m) There are no legal or governmental
proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is
subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or
other documents that are required to be described in
the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or
incorporated as required.
(n) Each of the Company and its subsidiaries has
all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has
made all declarations and filings with, all federal,
state, local and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its
properties and assets and to conduct its business in
the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) Each preliminary 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 Securities Act, complied when so
filed in all material respects with the Securities Act
and the rules and regulations of the Commission
thereunder.
(p) The Company is not an "investment company" or
an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of
1940, as amended.
(q) The business of the Company and its
subsidiaries is (i) in compliance with any and all
applicable foreign, federal, state and local laws and
regulations relating to the protection of human health
and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under
applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or
approval, except where such noncompliance with
Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
provided that if the Company (1) has not owned the
property and (2) has not leased the property, the
foregoing representation is made subject to the
knowledge of employees of the Company who have
responsibility for the property.
(r) The Company is duly registered under the Bank
Holding Company Act of 1956, as amended; the Company
and each subsidiary of the Company are in compliance
with and conduct their respective businesses in
conformity with all applicable bank and bank holding
company laws and governmental regulations, except to
the extent that any such failure to be in such
conformity would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
2. Public Offering. The Company is advised by
the Manager that the Underwriters propose to make a public
offering of their respective portions of the Offered
Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms
of the public offering of the Offered Securities are set
forth in the Prospectus.
3. Purchase and Delivery. Payment for the Firm
Offered Securities and any Additional Offered Securities
shall be made by certified or official bank check or checks
payable to the order of the Company in New York Clearing
House funds, or such other method as the Company and the
Manager shall agree, at the time and place set forth in the
Underwriting Agreement.
Payment for any Firm Offered Securities and
Additional Offered Securities which are in the form of
Depositary Shares shall be made against delivery to the
Manager on the Closing Date or the Option Closing Date, as
the case may be, for the respective accounts of the several
Underwriters of Depositary Receipts evidencing such Firm
Offered Securities or Additional Offered Securities, as the
case may be, registered in such names and in such
denominations as the Underwriters shall request in writing
not later than two full business days prior to the Closing
Date or the Option Closing Date, as the case may be, with
any transfer taxes payable in connection with the transfer
of such Offered Securities to the Underwriters duly paid.
4. Conditions to Closing. The several
obligations of the Underwriters hereunder are subject to the
following conditions:
(a) Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date,
(i) there shall not have occurred any
downgrading, nor shall any notice have been given
of any intended or potential downgrading, in the
rating accorded any of the Company's securities by
any "nationally recognized statistical rating
organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities
Act; and
(ii) 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
Company and its subsidiaries, taken as a whole,
from that set forth in the Registration Statement,
that, in the reasonable judgment of the Manager,
is material and adverse and that makes it, in the
judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
(b) The Manager shall have received on the
Closing Date a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the
effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of the
Company contained herein are true and correct as of the
Closing Date and that the Company has complied with all
of the agreements and satisfied all of the conditions
on its part to be performed or satisfied on or before
the Closing Date.
The officer signing and delivering such
certificate may rely upon the best of his knowledge as to
proceedings threatened.
(c) The Manager shall have received on the
Closing Date an opinion of Skadden, Arps, Slate,
Meagher & Flom, counsel for the Company, dated the
Closing Date, to the effect that
(i) the Company has been duly incorporated,
is validly existing as a corporation in good
standing under the laws of Delaware and is duly
registered under the Bank Holding Company Act of
1956, as amended;
(ii) Each of the Offered Securities, the
Underlying Preferred Shares, the Depositary
Receipts and the Deposit Agreement conforms as to
legal matters in all material respects to the
description thereof contained in the Basic
Prospectus under "Description of Preferred Stock"
and in the Prospectus Supplement under
"Description of Offered Depositary Shares" and
"Description of Offered Preferred Stock";
(iii) the Preferred Shares or the Underlying
Preferred Shares, as the case may be, have been
duly authorized and, when such shares are issued
and delivered as contemplated by the terms of this
Agreement, such shares will be validly issued,
fully paid and non-assessable, and the issuance of
such shares is not subject to any preemptive or
similar rights;
(iv) the deposit of the Underlying Preferred
Shares by the Company in accordance with the
Deposit Agreement has been duly authorized and,
when the Depositary Shares are issued in
accordance with the terms of this Agreement and
the Deposit Agreement, the Depositary Shares will
represent legal and valid interests in the
Underlying Preferred Shares;
(v) assuming due authorization, execution
and delivery of any Deposit Agreement by the
Depositary and upon due issuance by the Depositary
of the Depositary Receipts against deposit of the
Underlying Preferred Shares in accordance with the
provisions of the Deposit Agreement, each
Depositary Share will represent the interest
described in the Prospectus in an Underlying
Preferred Share; assuming due execution and
delivery of the Depositary Receipts by the
Depositary pursuant to the Deposit Agreement, the
Depositary Receipts will entitle the persons in
whose names such Depositary Receipts are
registered to the benefits of registered holders
of Depositary Receipts provided therein and in the
Deposit Agreement;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the Deposit Agreement has been duly
authorized, executed and delivered by the Company
and assuming due authorization, execution and
delivery thereof by the Depositary is a valid and
binding agreement of the Company, enforceable in
accordance with its terms, except (i) to the
extent that enforcement thereof may be limited by
(A) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally
and (B) general principals of equity (regardless
of whether enforceability is considered in a
proceeding at law or in equity) and (ii) such
counsel may express no opinion as to the
enforceability of provisions relating to
indemnification or contribution;
(viii) the statements made in the Basic
Prospectus under the captions "Regulatory Matters"
and "Description of Preferred Stock" and in the
Prospectus Supplement under the captions
"Regulatory Matters," "Description of Offered
Depositary Shares" and "Description of Offered
Preferred Stock" have been reviewed by such
counsel and are correct in all material respects,
and the statements in the Registration Statement
in Item 15, to the extent such statements
constitute summaries of legal matters or
documents, have been reviewed by such counsel and
are correct in all material respects;
(ix) the Company is not an "investment
company" or an entity "controlled" by an
"investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(x) the Registration Statement, as of its
effective date, the Basic Prospectus and the
Prospectus Supplement, as of their respective
dates, appear on their face to be appropriately
responsive in all material respects to the
applicable requirements of the Act, except that in
each case counsel expresses no opinion or belief
with respect to the financial statements,
schedules and other financial information included
or incorporated by reference in or excluded from
the Registration Statement, the Basic Prospectus,
the Prospectus Supplement or the exhibits to the
Registration Statement, nor does such counsel
assume any responsibility for the accuracy,
completeness or fairness of the statements
contained in the Registration Statement, the Basic
Prospectus or the Prospectus Supplement, except to
the extent set forth in paragraphs (ii) and (viii)
above; and
(xi) in addition, such counsel shall provide
a statement to the effect that such counsel has
participated in conferences with officers and
representatives of the Company and representatives
of the Underwriters, counsel for the Underwriters
and independent accountants of the Company, at
which the contents of the Registration Statement,
the Basic Prospectus and the Prospectus Supplement
and related matters were discussed and, although
not passing upon and not assuming any
responsibility for the accuracy, completeness or
fairness of the statements contained in the
Registration Statement, the Basic Prospectus and
the Prospectus Supplement and having made no
independent check or verification thereof (except
as set forth in paragraphs (ii) and (viii)
above)), on the basis of the foregoing, no facts
have come to such counsel's attention that have
led it to believe that the Registration Statement,
at the time such Registration Statement became
effective, contained an untrue statement of a
material fact or omitted to state any material
fact required to be stated therein or necessary to
make the statements therein not misleading or that
the Basic Prospectus or the Prospectus Supplement,
as of their respective dates and as of the Closing
Date, contained an untrue statement of a material
fact or omitted to state any material fact
necessary in order to make the statements therein,
in light of the circumstances under which they
were made, not misleading, except that such
counsel does not express a belief with respect to
the financial statements, schedules and other
financial information included or incorporated by
reference in or excluded from the Registration
Statement, the Basic Prospectus, the Prospectus
Supplement or the exhibits to the Registration
Statement including any Forms T-1.
(d) The Manager shall have received on the
Closing Date an opinion of J. Michael Shepherd, General
Counsel of the Company, dated the Closing Date, to the
effect that:
(i) the Company has the corporate power and
authority to own its property and to conduct its
business as described in the Prospectus;
(ii) each Principal Subsidiary of the Company
has been duly incorporated or organized, is
validly existing as a corporation, bank or savings
bank in good standing under the laws of the
jurisdiction of its incorporation, has the
corporate or other power and authority to own its
property and to conduct its business as described
in the Prospectus;
(iii) the execution and delivery by the
Company of, and the performance by the Company of
its obligations under, this Agreement, the
Certificate of Designation and the Deposit
Agreement will not violate any provision of
Applicable Law (as defined below) or the
certificate of incorporation or by-laws of the
Company or, to the best of such counsel's
knowledge, constitute a breach or default under
any agreement or other instrument binding upon the
Company or any of its subsidiaries that is
material to the Company and its subsidiaries,
taken as a whole, or, to the best of such
counsel's knowledge, violate any judgment, order
or decree of any governmental body, agency or
court having jurisdiction over the Company or any
subsidiary, and no consent, approval,
authorization or order of or qualification with
any governmental body or agency is required for
the performance by the Company of its obligations
under this Agreement, the Certificate of
Designation or the Deposit Agreement, except 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;
(iv) after due inquiry, such counsel does not
know of any legal or governmental proceeding
pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of
the properties of the Company or any of its
subsidiaries is subject that are required to be
described in the Registration Statement or the
Prospectus and are not so described or of any
statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement
that are not described or filed as required; and
(v) a statement to the effect that, in
connection with the preparation of the
Registration Statement, the Basic Prospectus and
the Prospectus Supplement, such counsel has
participated in conferences with officers and
representatives of the Company and representatives
of the Underwriters and independent accountants of
the Company, at which the contents of the
Registration Statement, the Basic Prospectus and
the Prospectus Supplement and related matters were
discussed and, although not passing upon and not
assuming any responsibility for the accuracy,
completeness or fairness of the statements
contained in the Registration Statement, the Basic
Prospectus and the Prospectus Supplement, on the
basis of the foregoing, no facts have come to such
counsel's attention that have led him to believe
that the Registration Statement, at the time such
Registration Statement became effective, contained
an untrue statement of a material fact or omitted
to state any material fact required to be stated
therein or necessary to make the statements
therein not misleading or that the Basic
Prospectus or the Prospectus Supplement, as of
their respective dates and as of the Closing Date,
contained an untrue statement of a material fact
or omitted to state any material fact required to
be stated therein or necessary in order to make
the statements therein, in light of the
circumstances under which they were made, not
misleading, except that such counsel does not
express a belief with respect to the financial
statements, schedules and other financial
information included or incorporated by reference
in or excluded from the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or
the exhibits to the Registration Statement
including any Forms T-1.
"Applicable law", as used in subparagraph (iii)
above, means laws which, in such counsel's experience,
are normally applicable to, or relevant in connection
with, transactions of the type provided for in this
Agreement or issuers of the same type as the Company.
Such counsel need not express any opinion as to any
violation of any law which may have become applicable
to the Company as a result of any facts specifically
pertaining to any Underwriter.
(e) The Manager shall have received on the
Closing Date opinions of Sullivan & Cromwell, counsel
for the Underwriters, dated the Closing Date, with
respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration
Statement, the Prospectus and other related matters as
the Manager reasonably may request, and Sullivan &
Cromwell shall have received such papers and
information as they may reasonably request to enable
them to pass upon such matters.
(f) The Manager shall have received, on each of
the date hereof and on the Closing Date, letters dated
the date hereof or the Closing Date, as the case may
be, in form and substance satisfactory to the Manager,
from (i) Price Waterhouse, the Company's independent
public accountants, and (ii) the independent public
accountants of each company acquired or to be acquired
by the Company the financial statements of which are
contained in or incorporated by reference into the
Registration Statement and the Prospectus (provided,
however, letters called for by this clause (ii) need
not be delivered unless, in the reasonable judgment of
the Manager, the acquisition of such company is
material to the Company), in each case containing
statements and information of the type ordinarily
included in accountants' "comfort letters" to
underwriters with respect to the financial statements
and certain financial information contained in or
incorporated by reference into the Registration
Statement and the Prospectus.
The opinion of Skadden, Arps, Slate, Meagher &
Flom described in paragraph (c) above and the opinion of J.
Michael Shepherd described in paragraph (d) above shall be
rendered to the Manager at the request of the Company and
shall so state therein.
The several obligations of the Underwriters to
purchase Additional Shares hereunder are subject to the
delivery to the Manager on the Option Closing Date of such
documents as the Manager may reasonably request with respect
to the good standing of the Company, the due authorization
and issuance of the Additional Shares and other matters
related to the issuance of the Additional Shares.
5. Covenants of the Company. In further
consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish the Manager, without charge, one
signed copy of the Registration Statement (including
exhibits thereto) and for delivery to each other
Underwriter one conformed copy of the Registration
Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies
of the Prospectus and any supplements and amendments
thereto or to the Registration Statement as the Manager
may reasonably request.
(b) Before amending or supplementing the
Registration Statement or the Prospectus, to furnish
the Manager a copy of each such proposed amendment or
supplement and to file no such proposed amendment or
supplement to which the Manager reasonably objects,
provided that if in the opinion of Skadden, Arps,
Slate, Meagher & Flom, the Company has a legal
obligation to file such proposed amendment or
supplement substantially in the form proposed by the
Company, the Company may file such proposed amendment
or supplement.
(c) If, during such period after the first date
of the public offering of the Offered Securities as in
the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of
which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and
addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the
Manager on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented will comply with
applicable laws.
(d) To endeavor to qualify the Offered Securities
for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including
reasonable fees and disbursements of counsel) in
connection with such qualification and in connection
with (i) the determination of the eligibility of the
Offered Securities for investment under the laws of
such jurisdictions as the Manager may designate and
(ii) the preparation of any Blue Sky or Legal
Investment Memoranda; provided that in no event shall
the Company or its subsidiaries be obligated to qualify
to do business in any jurisdiction where they are not
now so qualified or to take any action which would
subject them to general service of process in any
jurisdiction where they are not now so subject.
(e) To make generally available to the Company's
security holders and to the Manager as soon as
practicable an earning statement covering the
twelve-month period beginning on the first day of the
first full fiscal quarter after the date of this
Agreement that satisfies the provisions of Section
11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) During the period beginning on the date of
the Underwriting Agreement and continuing to and
including the earlier of (i) the termination of trading
restrictions for such Offered Securities, as notified
to the Company by the Manager, and (ii) the last
Closing Date for such Offered Securities, not to offer,
sell, contract to sell or otherwise dispose of, except
as provided hereunder, any securities of the Company
that are substantially similar to the Offered
Securities, including but not limited to any securities
that are convertible into or exchangeable for, or that
represent the right to receive, preferred stock or any
such substantially similar securities (other than
pursuant to employee stock option plans existing on, or
upon the conversion of convertible or exchangeable
securities outstanding as of, the date of the
Underwriting Agreement for such Offered Securities)
without the prior written consent of the Manager.
6. Indemnification and Contribution. The Company
agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against any and all
losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein;
provided, however, that the foregoing indemnity agreement
with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities
purchased Offered Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) was not delivered by or
on behalf of such Underwriter to such person, if required by
law so to have been delivered, at or prior to the written
confirmation of the sale of the Offered Securities to such
person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the
directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only with
reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter
through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for
(a) the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel; provided
that only one firm of attorneys shall act as local counsel
in any single jurisdiction) for all Underwriters and all
persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and (b) the reasonable fees
and expenses of more than one separate firm (in addition to
any local counsel; provided that only one firm of attorneys
shall act as local counsel in any single jurisdiction) for
the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls
the Company within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as they
are incurred. In the case of any such separate firm for the
Underwriters and such control persons of Underwriters, such
firm shall be designated in writing by Goldman, Sachs & Co.
In the case of any such separate firm for the Company, and
such directors, officers and control persons of the Company,
such firm shall be designated in writing by the Company.
The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i)
such settlement is entered into more than 90 days after
receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first
or second paragraph of this Section is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party
or parties on the other hand from the offering of the
Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also
the relative fault of the indemnifying party or parties on
the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and of the Underwriters on the other
hand in connection with the offering of the Offered
Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by
the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Prospectus
Supplement, bear to the aggregate public offering price of
the Offered Securities. The relative fault of the Company
on the one hand and the Underwriters on the other hand 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 Company or by the
Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are
several in proportion to the respective number of Offered
Securities they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to
this Section 6 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 that does not
take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, 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
Section 6, 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 were offered to the public exceeds
the amount of any damages that 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 Securities Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided
for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution provisions
contained in this Section 6 and the representations and
warranties of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any person controlling
the Company and (iii) acceptance of and payment for any of
the Offered Securities.
7. Termination. This Agreement shall be subject
to termination by notice given by the Manager to the
Company, 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
of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of
the Company 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, Connecticut,
Massachusetts or Rhode Island shall have been declared by
either Federal or 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 the judgment of the Manager, is material and adverse and
(b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event singly or together with any
other such event makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing
Date or the Option Closing Date, as the case may be, any one
or more of the Underwriters shall fail or refuse to purchase
Offered Securities that it or they have agreed to purchase
hereunder on such date, and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of Offered Securities to
be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in
Schedule I bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager
may specify, to purchase the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event
shall the number of Offered Securities that any Underwriter
has agreed to purchase pursuant to the Underwriting
Agreement be increased pursuant to this Section 8 by an
amount in excess of one-ninth of such number of Offered
Securities without the written consent of such Underwriter.
If, on the Closing Date or the Option Closing Date, as the
case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Offered Securities which it or they have
agreed to purchase hereunder on such date and the aggregate
number of Offered Securities with respect to which such
default occurs is more than one-tenth of the aggregate
number of Offered Securities to be purchased on such date
and arrangements satisfactory to the Manager and the Company
for the purchase of such Offered Securities are not made
within 36 hours after such default, this Agreement shall
terminate without liability on the part of any
non-defaulting Underwriter or of the Company. In any such
case either the Manager or the Company shall have the right
to postpone the Closing Date or Option Closing Date, as the
case may be, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter
under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or
refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if
for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company 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 reasonable fees
and disbursements of Sullivan & Cromwell) reasonably
incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
9. Miscellaneous. The Underwriting Agreement may
be signed in any number of 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 internal laws of the State of New
York.
10. Headings. The headings of the sections of
this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this
Agreement.
CUSIP 820484608
Number SHARES
*_______*
Incorporated Under the Laws of the State of Delaware
SHAWMUT NATIONAL CORPORATION
9.35 % CUMULATIVE PREFERRED STOCK NO PAR VALUE $250 STATED VALUE
This Certifies that Chemical Bank, as Depository is the
registered holder of * FIVE HUNDRED THOUSAND * Shares of the Preferred
Stock of SHAWMUT NATIONAL CORPORATION Fully Paid and Non-Assessable
transferable only on the books of the Corporation by the holder hereof
in person or by Attorney upon surrender of this Certificate properly
endorsed.
In Witness Whereof, the said Corporation has caused this
Certificate to be signed by its duly authorized officers and its
Corporate Seal to be hereunto affixed this 26th day of January
A.D. 1995.
__________________________________ __________________________
CHAIRMAN & CHIEF EXECUTIVE OFFICER SECRETARY
[SEAL]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT,
OR ANY CHANGE WHATEVER
SHAWMUT NATIONAL CORPORATION
The Corporation is authorized to issue Preferred
Stock and Common Stock. The Preferred Stock may be
divided into and issued in one or more series, having
such designations, preferences, voting powers,
qualifications and special and relative rights as may
be established by the Board of Directors from time to
time. The Corporation will furnish to the holder
hereof upon written request and without charge a copy
of the full text, as set forth the Corporation's
Articles of Incorporation, of the designations,
preferences, voting powers and relative, participating,
optional or other specified rights of each class (and
each series of a class, if any) of its Preferred Stock
authorized to be issued as of the date of such request
and of the qualifications, limitations or restrictions
of such preferences and/or rights. Requests for such
copies should be directed to Shawmut National
Corporation, Shareholder Relations Department, MSN 335,
777 Main Street, Hartford, CT 06115.
The following abbreviations, when used in the
inscription on the face of this certificate, shall be
construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -as tenants in common UNIF GIFT MIN ACT- ..... Custodian ......
TEN ENT -as tenants by the entireties (Cust) (Minor)
JT TEN -as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act..............
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For value received _____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________________________________
_____________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
_____________________________________________________________________________
_____________________________________________________________________________
Shares represented by the within Certificate, and do hereby irrevocably
constitute and appoint
________________________________________________________________ Attorney to
transfer the said shares on the books of the within named Corporation
with full power of substitution in the premises.
Dated, ___________________________
_____________________________
In the presence of
____________________________________
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, CERTIFICATE FOR
EACH DEPOSITARY SHARE REPRESENTING A ONE-TENTH ________________
INTEREST IN ONE SHARE OF 9.35% CUMULATIVE
PREFERRED STOCK ________________
SHAWMUT NATIONAL CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
DEPOSITARY SHARES
CHEMICAL BANK, as Depositary (the "Depositary) hereby
certifies that
Transferrable Depositary
Receipt
This Certificate is
transferable in
New York New York
CUSIP 820484509
Is the registered owner of Five Million
DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a one-tenth interest
in one share of 9.35% Cumulative Preferred Stock, without par value, $250
stated value per preferred share (the "Stock"), of Shawmut National Corporation,
a Delaware corporation (the "Corporation") on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of January 26, 1995 (the "Deposit Agreement"), between the Corporation
and the Depositary. By accepting this Depositary Receipt, the holder hereof
becomes a party to and agrees to be bound by all the terms and conditions of
the Deposit Agreement. This Depositary Receipt shall not be valid or
obligatory for any purpose or be entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by a duly authorized officer thereof.
Dated
Countersigned
CHEMICAL BANK
Depositary and Registrar
By
Authorized Officer
SHAWMUT NATIONAL CORPORATION
SHAWMUT NATIONAL CORPORATION WILL FURNISH WITHOUT CHARGE TO
EACH RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
AND A STATEMENT OR SUMMARY OF THE CERTIFICATE OF DESIGNATIONS OF
DIRECTORS ESTABLISHING THE POWERS. DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIFIED RIGHTS OF
THE 9.35% CUMULATIVE PREFERRED STOCK AND EACH OTHER CLASS OF
PREFERRED STOCK OR SERIES THEREOF WHICH THE CORPORATION IS
AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCE AND/OR RIGHTS. ANY SUCH REQUEST
SHOULD BE ADDRESSED TO SHAWMUT NATIONAL CORPORATION, SHAREHOLDER
RELATIONS DEPARTMENT, MSN 335, 777 MAIN STREET, HARTFORD, CT 06115.
____________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Depositary Receipt, shall be construed as though
they are written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______Custodian______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenant with right of under Uniform Gifts to
survivorship and not as tenants Minors Act ___________
in common (State)
UNIF TRAN MIN ACT - ____Custodian (until age__)
(Cust)
_________ under Uniform Transfers
(Minor)
Minors Act __________________
Additional abbreviations may also be used though not in the above list.
For value received, _________________________hereby sell(s), assigns(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 Depositary Receipt, and do(es) hereby
irrevocably constitute and appoint
_____________________________________________________Attorney
to transfer the said Depositary Shares on the books of the within
named Depositary with full power of substitution in the premises.
Dated _____________________________________ Signature:
_______________________________
NOTICE The signature to this
assignment must correspond with
the name as written upon the face
of this Depositary Receipt in
every particular, without
alteration or enlargement or any
change whatsoever
SIGNATURE GUARANTEED
____________________________________
DEPOSIT AGREEMENT, dated as of January 26,
1995, among SHAWMUT NATIONAL CORPORATION, a Delaware
corporation, (the "Company"), CHEMICAL BANK, a Delaware
corporation (the Depositary"), 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, 9.35% Cumulative Preferred Stock of
Shawmut National Corporation with the Depositary for the
purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially
in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the
promises contained herein, the parties hereto agree as
follows:
ARTICLE I
Definitions
The following definitions shall, for all
purposes, unless otherwise indicated, apply to the
respective terms used in this Deposit Agreement:
"Certificate" shall mean the Certificate of
Designation filed with the Secretary of State of the
State of Delaware establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean Shawmut National
Corporation, a Delaware corporation, and its successors.
"Deposit Agreement" shall mean this Deposit
Agreement, as amended or supplemented from time to time.
"Depositary" shall mean Chemical Bank, and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary
Shares, each representing one-tenth of a share of Stock
and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent
appointed by the Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the principal
office of the Depositary, at which at any particular time
its depositary receipt business shall be administered.
"Preferred Stock" means any stock of any class
or series of the Company which has a preference over
Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and
which is not mandatorily redeemable or repayable by the
Company, or redeemable or repayable at the option of the
holder of such stock.
"Receipt" shall mean one of the Depositary
Receipts, substantially in the form set forth as Exhibit
A hereto, issued hereunder, whether in definitive or
temporary form and evidencing the number of Depositary
Shares held of record by the record holder of such
Depositary Shares.
"record holder" or "holder" as applied to a
Receipt shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for
such purpose.
"Registrar" shall mean the Depositary or such
other bank or trust company which shall be appointed to
register ownership and transfers of Receipts as herein
provided.
"Securities Act" shall mean the Securities Act
of 1933, as amended.
"Stock" shall mean shares of the Company's
9.35% Cumulative Preferred Stock, $250 stated value per
share.
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, with appropriate
insertions, modifications and omissions, as hereinafter
provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the
Company or any holder of Stock, as the case may be,
delivered in compliance with Section 2.2, shall execute
and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in
lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of
the temporary Receipts at an office described in the
penultimate paragraph of Section 2.2, 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 Company'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 Agreement,
and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by
the manual signature of a duly authorized officer of the
Depositary; provided, that such signature may be a
facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts
are countersigned by a duly authorized officer of the
Registrar. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depositary
or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or
facsimile signature of a duly authorized officer of the
Depositary and countersigned by a duly authorized officer
of such Registrar. The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter
provided.
Receipts shall be in denominations of any
number of whole Depositary Shares.
Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals
or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any
regulation thereunder or with the rules and regulations
of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to
conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which
any particular Receipts are subject.
Title to Depositary Shares evidenced by a
Receipt, which is properly endorsed or accompanied by a
properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the
case of a negotiable instrument; provided, however, that
until transfer of a Receipt shall be registered on the
books of the Depositary as provided in Section 2.3, the
Depositary may, notwithstanding any notice to the
contrary, treat the record holder thereof at such time as
the absolute owner thereof for the purpose of determining
the person entitled to distributions of dividends or
other distributions or to any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.2. Deposit of Stock; Execution and
Delivery of Receipts in Respect Thereof. Subject to the
terms and conditions of this Deposit Agreement, the
Company or any holder of Stock may from time to time
deposit shares of the Stock under this Deposit Agreement
by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary,
by a duly executed instrument of transfer or endorsement,
in form satisfactory to the Depositary, together with all
such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit
Agreement, and together with a written order of the
Company or such holder, as the case may be, directing the
Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order a
Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Deposited Stock shall be held by the Depositary
at the Depositary's Office or at such other place or
places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate
or certificates for Stock deposited in accordance with
the provisions of this Section, together with the other
documents required as above specified, and upon
recordation of the Stock on the books of the Company in
the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver, to or upon
the order of the person or persons named in the written
order delivered to the Depositary referred to in the
first paragraph of this Section, a Receipt or Receipts
for the number of Depositary Shares representing the
Stock so deposited and registered in such name or names
as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or
Receipts at the Depositary's Office or such other
offices, if any, as the Depositary may designate.
Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
SECTION 2.3. 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 2.4. 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 new Receipt or
Receipts in the authorized denomination or denominations
requested, evidencing the aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts
representing any number of whole shares of Stock may
withdraw the Stock and all money and other property, if
any, represented thereby by surrendering such Receipt or
Receipts, at the Depositary's Office or at such other
offices as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder or to the person
or persons designated by such holder as hereinafter
provided, the number of whole shares of Stock and all
money and other property, if any, represented by the
Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter
be entitled to deposit such Stock hereunder or to receive
Depositary Shares therefor. If a Receipt delivered by
the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares
in excess of the number of Depositary Shares representing
the number of whole shares of Stock to be so withdrawn,
the Depositary shall at the same time, in addition to
such number of whole shares of Stock and such money and
other property, if any, to be so withdrawn, deliver to
such holder, or upon his order, a new Receipt evidencing
such excess number of Depositary Shares. Delivery of the
Stock and money and other property being withdrawn may be
made by the delivery of such certificates, documents of
title and other instruments as the Depositary may deem
appropriate.
If the Stock and the money and other property
being withdrawn are to be delivered to a person or
persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such
holders shall execute and deliver to the Depositary a
written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares
of Stock be properly endorsed in blank or accompanied by
a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other
property, if any, represented by Receipts surrendered for
withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk
and expense of the holder surrendering such Receipt or
Receipts and for the account of the holder thereof, such
delivery may be made at such other place as may be
designated by such holder.
SECTION 2.5. Limitations on Execution and
Delivery, Transfer, Surrender and Exchange of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any
of the Depositary's Agents or the Company may require
payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have
made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt
pursuant to Section 5.7, 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 Company may establish consistent with
the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the
delivery of Receipts against Stock may be suspended, the
registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of
outstanding Receipts may be suspended (i) during any
period when the register of stockholders of the Company
is closed or (ii) if any such action is deemed necessary
or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time
because of any requirement of law or of any government or
governmental body or commission or under any provision of
this Deposit Agreement.
SECTION 2.6. 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
indemnification (which may include posting an
indemnification bond) satisfactory to it.
SECTION 2.7. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the
Depositary or any Depositary's Agent shall be cancelled
by the Depositary. Except as prohibited by applicable
law or regulation, the Depositary is authorized to
destroy all Receipts so cancelled.
SECTION 2.8. Redemption of Stock. Whenever
the Company shall be permitted and shall elect to redeem
shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed to in
writing with the Depositary) give or cause to be given to
the Depositary not less than 30 days' and not more than
60 days' notice of the date of such proposed redemption
or exchange of Stock and of the number of such shares
held by the Depositary to be so redeemed and the
applicable redemption price, as set forth in the
Certificate, which notice shall be accompanied by a
certificate from the Company stating that such redemption
of Stock is in accordance with the provisions of the
Certificate. On the date of such redemption, provided
that the Company shall then have paid or caused to be
paid in full to the Depositary the redemption price of
the Stock to be redeemed, plus an amount equal to any
accrued and unpaid dividends thereon to the date fixed
for redemption, in accordance with the provisions of the
Certificate, the Depositary shall redeem the number of
Depositary Shares representing such Stock. The
Depositary shall mail notice of the Company's redemption
of Stock and the proposed simultaneous redemption of the
number of Depositary Shares representing the Stock to be
redeemed by first-class mail, postage prepaid, not less
than 10 and not more than 60 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 address of such holders as they appear on the records
of the Depositary; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more
such holders nor any defect in any notice of redemption
of Depositary Shares to one or more such holders shall
affect the sufficiency of the proceedings for redemption
as to the 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 holder 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 represented by the Depositary Shares to be
redeemed will cease to accrue 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 the Depositary by lot or
pro rata (as nearly as may be) or by any other method, in
each case, as determined by the Depositary in its sole
discretion to be equitable.
Notice having been mailed by the Depositary as
aforesaid, from and after the Redemption Date (unless the
Company shall have failed to provide the funds necessary
to redeem the Stock evidenced by the Depositary Shares
called for redemption) (i) dividends on the shares of
Stock so called for redemption shall cease to accrue from
and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to
be outstanding, (iii) all rights of the holders of
Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the
extent of such Depositary Shares, cease and terminate,
and (iv) upon surrender in accordance with such
redemption notice of the Receipts evidencing any such
Depositary Shares called for redemption (properly
endorsed or assigned for transfer, if the Depositary or
applicable law shall so require), such Depositary Shares
shall be redeemed by the Depositary at a redemption price
per Depositary Share equal to one-tenth of the redemption
price per share plus all money and other property, if
any, represented by such Depositary Shares, including all
amounts paid by the Company in respect of dividends which
on the Redemption Date have accumulated on the shares of
Stock to be so redeemed and have not theretofore been
paid.
If fewer than all of 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.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
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
Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or
delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal or conversion
of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any
dividend or other distribution or the sale of any rights
or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.2. 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 any part of or all the
Stock or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold
may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder
prior to such sale), and such dividends, interest
payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges
or expenses, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.3. Warranty as to Stock. The
Company hereby represents and warrants that the Stock,
when issued, will be duly authorized, validly issued,
fully paid and nonassessable, subject to Delaware General
Laws. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
SECTION 3.4. Warranty as to Receipts. The
Company hereby represents and warrants that the Receipts,
when issued, will represent legal and valid interests in
the Stock. Such representation and warranty shall
survive the deposit of the Stock and the issuance of
Receipts.
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
Section 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
Company 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. Any balance not so distributable shall be
returned by the Depositary to the Company 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,
Rights, Preferences or Privileges. Whenever the
Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the
Depositary shall, subject to Sections 3.1 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 other reason (including any
requirement that the Company or the Depositary withhold
an amount on account of taxes) the Depositary deems,
after consultation with the Company, such distribution
not to be feasible, the Depositary may, with the approval
of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such
distribution, including the sale (at public or private
sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale
shall, subject to Sections 3.1 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. The Company shall not make any distribution of
such securities or property to the Depositary and the
Depositary shall not make any distribution of such
securities or property to the holders of Receipts unless
the Company shall have provided an opinion of counsel
stating that such securities or property have been
registered under the Securities Act or do not need to be
registered in connection with such distributions.
SECTION 4.3. Subscription Rights, Preferences
or Privileges. If the Company shall at any time offer or
cause to be offered to the persons in whose names Stock
is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or
privileges shall in each such instance be made available
by the Depositary to the record holders of Receipts in
such manner as the Depositary may determine, either by
the issue to such record holders of warrants representing
such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its
discretion with the approval of the Company; provided,
however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary
determines that it is not lawful or (after consultation
with the Company) not feasible to make such rights,
preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (ii)
if and to the extent so instructed by holders of Receipts
who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with
approval of the Company, in any case where the Depositary
has determined that it is not feasible to make such
rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences
or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at
such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject
to Sections 3.1 and 3.2, 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 the
securities to which any rights, preferences or privileges
relate is required in order for holders of Receipts to be
offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with
the Depositary that it will file promptly a registration
statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use
its best efforts and take all steps available to it to
cause such registration statement to become effective
sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no
event shall the Depositary make available to the holders
of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and
until such registration statement shall have become
effective, or unless the offering and sale of such
securities to such holders are exempt from registration
under the provisions of the Securities Act, and the
Company shall have provided to the Depositary an opinion
of counsel to such effect.
If any other action under the laws of any
jurisdiction or any governmental or administrative
authorization, consent or permit is required in order for
such rights, preferences or privileges to be made
available to holders of Receipts, the Company agrees with
the Depositary that the Company will use its reasonable
best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or
privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4. Notice of Dividends, etc.; Fixing
Record Date for Holders of Receipts. Whenever any cash
dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be
offered, with respect to Stock, or whenever the
Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders
of Stock are entitled to notice, or whenever the
Depositary and the Company shall decide it is
appropriate, the Company shall in each such instance fix
a record date for the determination of the holders of
Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting, or
who shall be entitled to notice of such meeting or for
any other appropriate reasons.
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, subject to any
applicable restrictions, instruct the Depositary as to
the exercise of the voting rights pertaining to the
amount of Stock represented by their respective
Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the
Company) and a brief statement as to the manner in which
such instructions may be given. Upon the written request
of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum
number of whole shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The
Company hereby agrees to take all reasonable action which
may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary
will not vote (but, at its discretion, may appear at any
meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the
extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.6. 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 Company or to which it is a
party, the Depositary may in its discretion with the
approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments
as are certified by the Company in the fraction of an
interest represented by one Depositary Share in one share
of Stock as may be necessary fully to reflect the effects
of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of
such recapitalization, reorganization, merger or
consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion
or in respect of such Stock. In any such case the
Depositary may in its discretion, with the approval of
the Company, execute and deliver additional Receipts or
may call for the surrender of all outstanding Receipts to
be exchanged for new Receipts specifically describing
such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have
the right from and after the effective date of any such
change in par or stated value, split-up, combination or
other reclassification of the Stock or any such
recapitalization, reorganization, merger or consolidation
to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other
securities and property and cash into which the Stock
represented by such Receipts might have been converted or
for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of
such transaction.
SECTION 4.7. Delivery of Reports. The
Depositary shall furnish to holders of Receipts any
reports and communications received from the Company
which are received by the Depositary as the holder of
Stock.
SECTION 4.8. List of Receipt Holders.
Promptly upon request from time to time by the Company,
the Depositary shall furnish to it a list, as of the most
recent practicable date, of the names, addresses and
holdings of Depositary Shares of all record holders of
Receipts.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.1. 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 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
Company, appoint a Registrar for registration of the
Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby
or the Stock represented by such Depositary Shares shall
be listed on one or more national stock exchanges, the
Depositary will appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary
Shares in accordance with any requirements of such
exchange. Such Registrar may be the Depositary if so
permitted by the requirements of any such exchange. Such
Registrar may be removed and a substitute registrar
appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such
Depositary Shares or such stock are listed on one or more
other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the
delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary
Shares or such stock as may be required by law or
applicable stock exchange regulation.
SECTION 5.2. Prevention of or Delay in
Performance by the Depositary, the Depositary's Agents,
the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company
shall incur any liability to any holder of any Receipt if
by reason of any provision of any present or future law,
or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of
the Depositary, the Depositary's Agent or the Registrar,
by reason of any provision, present or future, of the
Company's Restated Certificate of Incorporation, as
amended (including the Certificate) or by reason of any
act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be
prevented, delayed or forbidden from, or subjected to any
penalty on account of, doing or performing any act or
thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur
liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this
Deposit Agreement shall provide shall or may be done or
performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this
Deposit Agreement except, in the case of any such
exercise or failure to exercise discretion not caused as
aforesaid, if caused by the negligence or willful
misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.3. Obligation of the Depositary, the
Depositary's Agents, the Registrar and the Company.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company assumes any obligation or shall
be subject to any liability under this Deposit Agreement
to holders of Receipts other than for its negligence,
willful misconduct or bad faith. The Company shall
indemnify the Depositary for, and 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 its agency under this Deposit Agreement,
including the costs and expenses of defending itself
against any claim or liability in connection with its
exercise or performance of any of its duties under this
Deposit Agreement. Anything in this Deposit Agreement to
the contrary notwithstanding, in no event shall the
Depositary be liable for special, indirect or
consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the
Depositary has been advised of the likelihood of such
loss or damage and regardless of the form of the action.
Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company shall be under
any obligation to appear in, prosecute or defend any
action, suit or other preceding in respect of the Stock,
the Depositary Shares or the Receipts which in its
opinion may involve it in expense or liability unless
indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company shall be liable
for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants,
or information from any person presenting Stock for
deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be
protected in acting upon any written notice, request,
direction or other document believed by it to be genuine
and to have been signed or presented by the proper party
or parties.
The Depositary shall not be responsible for any
failure to carry out any instruction to vote and of the
shares of stock or for the manner or effect of any such
vote made, as long as any such action or non-action is in
good faith. The Depositary undertakes, and any Registrar
shall be required to undertake, to perform such duties
and only such duties as are specifically set forth in
this Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Depositary
or any Registrar. This Section 5.3 shall survive any
termination of this Agreement and any succession of any
Depositary. The Depositary, the Depositary's Agents, and
any Registrar may own and deal in any class of securities
of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates.
SECTION 5.4. Resignation and Removal of the
Depositary; Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary hereunder
by delivering notice of its election to do so to the
Company, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance
of such appointment as hereinafter provided.
The Depositary may at any time be removed by
the Company by notice of such removal delivered to the
Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall,
within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a
successor Depositary, which shall be a bank or trust
company having its principal office in the United States
of America and having a combined capital and surplus of
at least $50,000,000. If no successor Depositary shall
have been so appointed and have accepted appointment
within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of
competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and
deliver to its predecessor and to the Company an
instrument in writing accepting its appointment
hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully
vested with all the rights, powers, duties and
obligations of its predecessor and for all purposes shall
be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver
an instrument transferring to such successor all rights
and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and
interest in the Stock and any moneys or property held
hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding
Receipts and such records, books and other information in
its possession relating thereto. Any successor
Depositary shall promptly mail notice of its appointment
to the record holders of Receipts.
Any corporation into or with which the
Depositary may be merged, consolidated or converted shall
be the successor of such Depositary without the execution
or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor
Depositary may authenticate the Receipts in the name of
the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.5. Corporate Notices and Reports.
The Company agrees that it will transmit to the record
holders of Receipts, in each case at the addresses
furnished to it pursuant to Section 4.8, all notices and
reports (including without limitation financial
statements) required by law or by the rules of any
national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed, to be
furnished to the record holders of Receipts or otherwise
determine to furnish. Such transmission will be at the
Company's expense.
SECTION 5.6. Indemnification by the Company.
The Company 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 reasonable costs and expenses of
defending itself) which may arise out of acts performed
or omitted in connection with this Agreement and the
Receipts by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent),
except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts
of any such person or persons. The obligations of the
Company set forth in this Section 5.6 shall survive any
succession of any Depositary, Registrar or Depositary's
Agent.
SECTION 5.7. Charges and Expenses. The
Company shall pay all transfer and other taxes and
governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all
charges of the Depositary in connection with the initial
deposit of the Stock and the initial issuance of the
Depositary Shares, all withdrawals of shares of the Stock
by owners of Depositary Shares, and any redemption or
exchange of the Stock at the option of the Company. All
other transfer and other taxes and governmental charges
shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable
for such charges and expenses. All other charges and
expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder
will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of
such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Company at
such intervals as the Company and the Depositary may
agree.
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 Company and the Depositary in any respect
which they may deem necessary or desirable; provided,
however, that no such amendment (other than any change in
the fees of any Depositary or Registrar, which shall go
into effect not sooner than three months after notice
thereof to the holders of the Receipts) which shall
materially and adversely alter the rights of the holders
of Receipts shall be effective unless such amendment
shall have been approved by the holders of at least a
majority of the Depositary Shares 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 the Deposit Agreement
as amended thereby.
SECTION 6.2. This Agreement may be terminated
by the Company or the Depositary only after (i) all
outstanding Depositary Shares have been redeemed pursuant
to Section 2.8 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 Company
and such distribution shall have been distributed to the
holders of Depositary Shares pursuant to Section 4.1 or
4.2, as applicable.
Upon the termination of this Deposit Agreement,
the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations
to the Depositary, 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, 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 Company hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter,
addressed to the Company at:
Shawmut National Corporation
777 Main Street
Hartford, CT 06115
Attention: Secretary
Facsimile No.: (203) 986-4205
or at any other address of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the
Depositary hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to
the Depositary at the Depositary's Office, at:
Chemical Bank
450 West 33rd Street
New York, NY 10001
Attention: Vice President,
Stock Transfer Administration
15th Floor
Facsimile No.: 212-613-7217
or at any other address of which the Depositary shall
have notified the Company in writing.
Any and all notices to be given to any record
holder of a Receipt hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given
if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed
to such record holder at the address of such record
holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a
written request that notices intended for such holder be
mailed to some other address, at the address designated
in such request.
Delivery of a notice sent by mail or by
telegram or facsimile transmission shall be deemed to be
effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the
case of a telegram or facsimile transmission) is
deposited, postage prepaid, in a post office letter box.
The Depositary or the Company may, however, act upon any
telegram or facsimile transmission received by it from
the other or from any holder of a Receipt,
notwithstanding that such telegram or facsimile
transmission shall not subsequently be confirmed by
letter or as aforesaid.
SECTION 7.5. 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 Company of any such
action.
The Company hereby also appoints the Depositary
as Registrar in respect of the Receipts and the
Depositary hereby accepts such appointments.
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 of 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 NEW YORK.
SECTION 7.8. Inspection of Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the
Depositary and the Depositary's Agent and shall be open
to inspection during business hours at the Depositary's
Office and respective offices of the Depositary's Agent,
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 Company and the
Depositary have duly executed this 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.
SHAWMUT NATIONAL CORPORATION
Attested by
_______________________ By:__________________________
[SEAL]
Attested by CHEMICAL BANK
_______________________ By:_________________________
[SEAL]
SHAWMUT NATIONAL CORPORATION,
CHEMICAL BANK, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
Dated as of January 26, 1995
TABLE OF CONTENTS
PAGE
ARTICLE I
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 . . . . 3
SECTION 2.2. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof . . . 4
SECTION 2.3. Registration of Transfer of Receipts . 5
SECTION 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock . . . . . . . . . . . . . . 6
SECTION 2.5. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts . . . . . . . . . . . . . . 7
SECTION 2.6. Lost Receipts, etc. . . . . . . . . . 7
SECTION 2.7. Cancellation and Destruction of
Surrendered Receipts . . . . . . . . 8
SECTION 2.8. Redemption of Stock . . . . . . . . . 8
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.1. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . 10
SECTION 3.2. Payment of Taxes or Other Governmental
Charges . . . . . . . . . . . . . . 10
SECTION 3.3. Warranty as to Stock . . . . . . . . . 11
SECTION 3.4. Warranty as to Receipts . . . . . . . 11
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.1. Cash Distributions . . . . . . . . . . 11
SECTION 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges . . . . . 12
SECTION 4.3. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . 12
SECTION 4.4. Notice of Dividends, etc.; Fixing Record
Date for Holders of Receipts . . . . 14
SECTION 4.5. Voting Rights . . . . . . . . . . . . 14
SECTION 4.6. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, etc. . . . . . . 15
SECTION 4.7. Delivery of Reports . . . . . . . . . 16
SECTION 4.8. List of Receipt Holders . . . . . . . 16
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar . . . . . . . . . . . . . 16
SECTION 5.2. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company 17
SECTION 5.3. Obligation of the Depositary, the
Depositary's Agents, the Registrar
and the Company . . . . . . . . . . 18
SECTION 5.4. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary . . . . . . . . 19
SECTION 5.5. Corporate Notices and Reports . . . . 20
SECTION 5.6. Indemnification by the Company . . . . 20
SECTION 5.7. Charges and Expenses . . . . . . . . . 21
ARTICLE VI
Amendment and Termination
SECTION 6.1. Amendment . . . . . . . . . . . . . . 21
SECTION 6.2. Termination . . . . . . . . . . . . . 22
ARTICLE VII
Miscellaneous
SECTION 7.1. Counterparts . . . . . . . . . . . . . 22
SECTION 7.2. Exclusive Benefit of Parties . . . . . 23
SECTION 7.3. Invalidity of Provisions . . . . . . . 23
SECTION 7.4. Notices . . . . . . . . . . . . . . . 23
SECTION 7.5. Depositary's Agents . . . . . . . . . 24
SECTION 7.6. Holders of Receipts Are Parties . . . 24
SECTION 7.7. GOVERNING LAW . . . . . . . . . . . . 24
SECTION 7.8. Inspection of Deposit Agreement . . . 25
SECTION 7.9. Headings . . . . . . . . . . . . . . . 25
Form of Depositary Shares
Form of Face of Receipt . . . . . . . . . . . . . . . A-1
Form of Reverse of Receipt . . . . . . . . . . . . . A-2
CERTIFICATE OF DESIGNATION
OF
9.35% CUMULATIVE PREFERRED STOCK
(Without Par Value,
$250 Stated Value)
OF
SHAWMUT NATIONAL CORPORATION
______________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
______________________
SHAWMUT NATIONAL CORPORATION, a corporation
organized and existing under the laws of the State of
Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of
Directors of the Corporation and by the Preferred Stock
Committee of the Board of Directors, respectively, pursuant
to authority conferred upon the Board of Directors by the
provisions of the Certificate of Incorporation of the
Corporation which authorize the issuance of up to 10,000,000
shares of preferred stock, without par value ("Preferred
Stock") and which expressly grants to the Board of Directors
of the Corporation, subject to the limitations prescribed by
law and the provisions of the Certificate of Incorporation,
as amended, the authority to provide for the issuance from
time to time in one or more series of any number of
preferred shares and to establish the number of shares to be
included in each series, and to fix the designation,
relative rights, preferences, qualifications and limitations
of the shares, of each such series as shall be stated in the
Certificate of Incorporation or any amendment thereto or in
the resolutions providing for the issue of such stock
adopted by the Board of Directors, and pursuant to authority
conferred upon the Preferred Stock Committee of the Board of
Directors by Section 141(c) of the General Corporation Law
of the State of Delaware, by the By-Laws of the Corporation
and by the resolutions of the Board of Directors set forth
herein, at a meeting of the Board of Directors duly held on
December 15, 1994:
1. The Board of Directors on December 15, 1994
adopted the following resolutions designating a Preferred
Stock Committee of the Board of Directors and authorizing
such committee to act on behalf of the Board of Directors in
connection with the issuance from time to time of up to
575,000 shares of preferred stock, without par value, $250
stated value, of the Corporation (the "Preferred Shares"):
"VOTED: That the Chairman and the President of the
Corporation, each in their capacities as a member
of the Preferred Stock Committee (as defined
below), be, and each hereby is, authorized to
determine and set the terms of the Preferred Stock
and prepare (and each of the Chairman, any Vice
Chairman, the President, the Chief Financial
Officer and any Executive Vice President of the
Corporation (the "Authorized Officers"), and the
Secretary and any Assistant Secretary of the
Corporation be, and each hereby is, authorized to
execute and file with the proper state authority)
any one or more certificates of designation,
setting forth the following:
1. the title and stated value per share of the
Preferred Stock;
2. the number of shares of Preferred Stock
offered;
3. the dividend rate for method of calculation,
the dates on which dividends shall be
payable, whether such dividends shall
commence to cumulate;
4. any sinking fund or redemption provisions of
such Preferred Stock;
5. any conversion provisions;
6. any additional dividend, liquidation,
redemption, sinking fund and other rights,
preferences, privileges, limitations and
restrictions on such Preferred Stock;
7. the form of Preferred Stock and coupons, if
any;
8. any other terms of the Preferred Stock
provided for or permitted by the
Corporation's Certificate of Incorporation.
VOTED: That the Chairman and the President (in his
capacity as a director) of the Corporation be, and
each hereby is, appointed to the Preferred Stock
Committee (the "Preferred Stock Committee") and
authorized, on behalf of the Corporation, to
determine the price or prices at which the
Preferred Stock which may be represented by
Depositary Shares shall be sold to the public, the
price or prices at which the Preferred Stock shall
be sold to the several underwriters, the date or
dates upon which such sales shall be concluded,
the names of the several underwriters to whom the
Preferred Stock shall be sold, that may include
Goldman, Sachs & Co. and other investment bankers,
and other matters necessary to complete the
certificate of designation or other determination
of the Preferred Stock Committee of the
Corporation to be evidenced by a certificate
executed by an Authorized Officer and the
Secretary or any Assistant Secretary of the
Corporation;"
2. The Preferred Stock Committee of the Board of
Directors, on January 19, 1995, adopted the following
resolutions:
"VOTED: That the Preferred Shares shall have the
designations, preferences, rights, qualifications and
limitations as follows:
(a) Designation. The Preferred Shares shall be
designated the "9.35% Cumulative Preferred Stock" and
the number of shares constituting this series shall be
575,000. Such Preferred Shares shall have a stated
value of $250 per share. The number of authorized
Preferred Shares may be reduced by further resolution
duly adopted by the Board and by the filing of a
certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that
such reduction has been so authorized, but the number
of authorized Preferred Shares shall not be increased.
(b) Dividends.
(1) Dividend periods ("Dividend Periods")
shall commence on January 15, April 15, July 15
and October 15 in each year and shall end on and
include the day next preceding the first day of
the next Dividend Period. The dividend rate on
the Preferred Shares from January 26, 1995 to and
including April 14, 1995 (the "Initial Dividend
Period") and for each Dividend Period thereafter
will be 9.35% per annum of the stated value
thereof. Such dividends shall be cumulative from
January 26, 1995 and shall be payable when and as
declared by the Board, on January 15, April 15,
July 15 and October 15 of each year, commencing
April 15, 1995. Each such dividend shall be paid
to the holders of record of Preferred Shares as
they appear on the stock register of the
Corporation on such record date, not exceeding 30
days preceding the payment date thereof, as shall
be fixed by the Board. Dividends on account of
arrears for any past Dividend Periods may be
declared and paid at any time, without reference
to any regular dividend payment date, to holders
of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be
fixed by the Board.
(2) No full dividends shall be declared or
paid or set apart for payment on Preferred Stock
of any series ranking, as to dividends, on a
parity with or junior to the Preferred Shares for
any period unless full cumulative dividends have
been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment
thereof set apart for such payment on the
Preferred Shares for all dividend payment periods
terminating on or prior to the date of payment of
such full cumulative dividends. When dividends
are not paid in full, as aforesaid, upon the
Preferred Shares and any other Preferred Stock
ranking on a parity as to dividends with the
Preferred Shares, all dividends declared upon
shares of the Preferred Shares and any other
Preferred Stock ranking on a parity as to
dividends with the Preferred Shares shall be
declared pro rata so that the amount of dividends
declared per share on the Preferred Shares and
such other Preferred Stock shall in all cases bear
to each other the same ratio that accrued
dividends per share on the Preferred Shares and
such other Preferred Stock bear to each other.
Holders of the Preferred Shares shall not be
entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative
dividends, as herein provided, on the Preferred
Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any
dividend payment or payments on the Preferred
Shares which may be in arrears.
(3) So long as any of the Preferred Shares
are outstanding, no dividend (other than a
dividend in Common Stock or in any other stock
ranking junior to the Preferred Shares as to
dividends and upon liquidation and other than as
provided in paragraph (2) of this Section (b))
shall be declared or paid or set aside for payment
or other distribution declared or made upon the
Common Stock or upon any other stock ranking
junior to or on a parity with the Preferred Shares
as to dividends or upon liquidation, nor shall any
Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with
the Preferred Shares 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
the Corporation (except by conversion into or
exchange for stock of the Corporation ranking
junior to the Preferred Shares as to dividends and
upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding Preferred
Shares shall have been paid for all past dividend
payment periods.
(4) Dividends payable on each Preferred
Share for each Dividend Period shall be computed
by annualizing the applicable dividend rate and
dividing by four. Dividends payable on the
Preferred Shares for any period less than a full
Dividend Period shall be computed on the basis of
a 360-day year consisting of twelve 30-day months.
(c) Redemption.
(1) The Preferred Shares shall not be
redeemable prior to January 15, 2000. On and
after January 15, 2000, the Corporation, at its
option, may redeem the Preferred Shares, as a
whole or in part, at any time or from time to time
at a redemption price equal to $250 per share plus
accrued and unpaid dividends thereon to the date
fixed for redemption. Notwithstanding the
foregoing, to the extent applicable law requires,
the Preferred Shares may not be redeemed by the
Corporation without the prior approval of the
Board of Governors of the Federal Reserve System.
(2) In the event that fewer than all the
outstanding Preferred Shares are to be redeemed,
the number of shares to be redeemed shall be
determined by the Board and the shares to be
redeemed shall be determined by lot or pro rata as
may be determined by the Board of Directors of the
Corporation or by any duly authorized committee
thereof or by any other method as may be
determined by the Board of Directors of the
Corporation or by any duly authorized committee
thereof in its sole discretion to be equitable,
provided that such method satisfies any applicable
requirements of any securities exchange on which
the Preferred Shares are listed.
(3) In the event the Corporation shall
redeem Preferred Shares, notice of such redemption
shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60
days prior to the redemption date, to each holder
of record of the shares to be redeemed, at such
holder's address as the same appears on the stock
register of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the
number of Preferred Shares to be redeemed and, if
fewer than all the shares held by such holder are
to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates
for such shares are to be surrendered for payment
of the redemption price; and (v) that dividends on
the shares to be redeemed will cease to accrue on
such redemption date.
(4) Notice having been mailed as aforesaid,
from and after the redemption date (unless default
shall be made by the Corporation in providing
money for the payment of the redemption price)
dividends on the Preferred Shares so called for
redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders
of the Corporation (except the right to receive
from the Corporation the redemption price) shall
cease. Upon surrender in accordance with said
notice of the certificates for any shares so
redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the
Corporation or any duly authorized committee
thereof shall so require and the notice shall so
state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In
case fewer than all 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.
(5) Any of the Preferred Shares which shall
at any time have been redeemed shall, after such
redemption, have the status of authorized but
unissued shares of Preferred Stock, without
designation as to series until such shares are
once more designated as part of a particular
series by the Board of Directors of the
Corporation or any duly authorized committee
thereof.
(6) Notwithstanding the foregoing provisions
of this Section (c), if any dividends on the
Preferred Shares are in arrears, no Preferred
Shares shall be redeemed unless all outstanding
Preferred Shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase
or otherwise acquire any Preferred Shares;
provided, however, that the foregoing shall not
prevent the purchase or acquisition of Preferred
Shares pursuant to a purchase or exchange offer
made on the same terms to holders of all
outstanding Preferred Shares.
(d) Conversion or Exchange. The holders of the
Preferred Shares shall not have any rights herein to
convert such shares into or exchange such shares for
shares of any other class or classes or of any other
series of any class or classes of capital stock of the
Corporation.
(e) Voting. The Preferred Shares shall not have
any voting powers, either general or special, except
that
(i) Unless the vote or consent of the
holders of a greater number of shares shall then
be required by law, the consent of the holders of
at least 66 2/3% of all of the Preferred Shares at
the time outstanding, given in person or by proxy,
either in writing or by a vote at a meeting called
for the purpose at which the holders of Preferred
Shares shall vote together as a separate class,
shall be necessary for authorizing, effecting or
validating the amendment, alteration or repeal of
any of the provisions of the Restated Certificate
of Incorporation or of any certificate amendatory
thereof or supplemental thereto (including any
Certificate of Designation, Preferences and Rights
or any similar document relating to any series of
Preferred Stock) which would adversely affect the
preferences, rights, powers or privileges of the
Preferred Shares;
(ii) Unless the vote or consent of the
holders of a greater number of shares shall then
be required by law, the consent of the holders of
at least 66 2/3% of all of the Preferred Shares
and all other series of Preferred Stock ranking on
a parity with the Preferred Shares, either as to
dividends or upon liquidation, at the time
outstanding, given in person or by proxy, either
in writing or by a vote at a meeting called for
the purpose at which the holders of Preferred
Shares and such other series of Preferred Stock
shall vote together as a single class without
regard to series, shall be necessary for
authorizing, effecting or validating the creation,
authorization or issue of any shares of any class
of stock of the Corporation ranking prior to the
Preferred Shares as to dividends or upon
liquidation, or the reclassification of any
authorized stock of the Corporation into any such
prior shares, or the creation, authorization or
issue of any obligation or security convertible
into or evidencing the right to purchase any such
prior shares;
(iii) If at the time of any annual meeting of
stockholders for the election of directors a
default in preference dividends (as defined below)
on the Preferred Stock shall exist, the number of
directors constituting the Board of Directors of
the Corporation shall be increased by two, and the
holders of the Preferred Stock of all series shall
have the right at such meeting, voting together as
a single class without regard to series, to the
exclusion of the holders of common stock, to elect
two directors of the Corporation to fill such
newly created directorships. Such right shall
continue until there are no dividends in arrears
upon the Preferred Stock. Each director elected
by the holders of shares of Preferred Stock
(herein called a "Preferred Director") shall
continue to serve as such director for the full
term for which he or she shall have been elected,
notwithstanding that prior to the end of such term
a default in preference dividends shall cease to
exist. Any Preferred Director may be removed by,
and shall not be removed except by, the vote of
the holders of record of the outstanding shares of
Preferred Stock, voting together as a single class
without regard to series, at a meeting of the
stockholders, or of the holders of shares of
Preferred Stock, called for the purpose. So long
as a default in any preference dividends on the
Preferred Stock shall exist, (a) any vacancy in
the office of a Preferred Director may be filled
(except as provided in the following clause (b))
by an instrument in writing signed by the
remaining Preferred Director and filed with the
Corporation and (b) in the case of the removal of
any Preferred Director, the vacancy may be filled
by the vote of the holders of the outstanding
shares of Preferred Stock, voting together as a
single class without regard to series, at the same
meeting at which such removal shall be voted.
Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for
all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred
Directors shall end and a default in preference
dividends shall no longer exist, the number of
directors constituting the Board of Directors of
the Corporation shall be reduced by two. For the
purposes hereof, a "default in preference
dividends" on the Preferred Stock shall be deemed
to exist whenever the amount of accrued dividends
upon any series of Preferred Stock shall be
equivalent to six full quarter-yearly dividends or
more, and, having so occurred, such default shall
be deemed to exist thereafter until, but only
until, all accrued dividends on all shares of
Preferred Stock of each and every series then
outstanding shall have been paid to the end of the
last preceding quarterly dividend period.
(f) Liquidation Rights.
(1) Upon the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation, the holders of the Preferred Shares
shall be entitled to receive, before any payment
or distribution shall be made on the Common Stock
or on any other class of stock ranking junior to
the Preferred Shares upon liquidation, the amount
of $250 per share, plus a sum equal to all
dividends (whether or not earned or declared) on
such shares accrued and unpaid thereon to the date
of final distribution.
(2) Neither the sale of all or substantially
all of the property or business of the
Corporation, nor the merger or consolidation of
the Corporation into or with any other
corporation, nor the merger or consolidation of
any other corporation into or with the
Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or
involuntary, for the purpose of this Section (f).
(3) After the payment to the holders of the
Preferred Shares of the full preferential amounts
provided for in this Section (f), the holders of
the Preferred Shares as such shall have no right
or claim to any of the remaining assets of the
Corporation.
(4) In the event the assets of the
Corporation available for distribution to the
holders of the Preferred Shares upon any
dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary,
shall be insufficient to pay in full all amounts
to which such holders are entitled pursuant to
paragraph (1) of this Section (f), no such
distribution shall be made on account of any
shares of any other class or series of Preferred
Stock ranking on a parity with the Preferred
Shares upon such dissolution, liquidation or
winding up unless proportionate distributive
amounts shall be paid on account of the Preferred
Shares, ratably, in proportion to the full
distributable amounts for which holders of all
such parity shares are respectively entitled upon
such dissolution, liquidation or winding up.
(5) Upon the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation, the holders of the Preferred Shares
then outstanding shall be entitled to be paid out
of the assets of the Corporation available for
distribution to its stockholders all amounts to
which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any
payment shall be made to the holders of any class
of capital stock of the Corporation ranking junior
upon liquidation to the Preferred Shares.
(g) Ranking of Classes of Stock. For purposes of
this resolution, any stock of any class or classes of
the Corporation shall be deemed to rank:
(1) prior to the Preferred Shares, either as
to dividends or upon liquidation, if the holders
of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable
upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the
holders of the Preferred Shares;
(2) on a parity with the Preferred Shares,
either as to dividends or upon liquidation,
whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices
per share or sinking fund provisions, if any, be
different from those of the Preferred Shares, if
the holders of such stock shall be entitled to the
receipt of dividends or of amounts distributable
upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, as
the case may be, in proportion to their respective
dividend rates or liquidation prices, without
preference or priority, one over the other, as
between the holders of such stock and the holders
of the Preferred Shares; and
(3) junior to the Preferred Shares, either
as to dividends or upon liquidation, if such class
shall be Common Stock or if the holders of the
Preferred Shares shall be entitled to receipt of
dividends or of amounts distributable upon
voluntary or involuntary dissolution, liquidation
or winding up of the Corporation, as the case may
be, in preference or priority to the holders of
shares of such class or classes."
IN WITNESS WHEREOF, Shawmut National Corporation
has caused its corporate seal to be hereunto affixed and
this Certificate to be signed by its Executive Vice
President, General Counsel and Secretary, J. Michael
Shepherd and attested by its Assistant Secretary, Harriet
Munrett Wolfe, this 26th day of January, 1995.
SHAWMUT NATIONAL CORPORATION
By:_________________________
Name: J. Michael Shepherd
Title: Executive Vice
President, General
Counsel and Secretary
[Corporate Seal]
Attest:
______________________
Assistant Secretary
