As filed with the Securities and Exchange Commission on May 22, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
STATE STREET BOSTON CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-2456637
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No)
225 Franklin Street
Boston, Massachusetts 02110
(617) 786-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
John R. Towers, Esq.
Senior Vice President - Legal
State Street Boston Corporation
225 Franklin Street
Boston, Massachusetts 02110
(617) 786-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Champe A. Fisher, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
Approximate date of commencement of proposed sale to the public: From time to
time or at one time after the effectiveness of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ____
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. __XX__
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum Amount of
Title of each class of Amount to offering aggregate registration
securities be price offering fee
to be registered registered per price<F1>
unit<F1>)
Common Stock
($1.00 par value)<F2> 2,986,111 $32.875 $98,168,399 $33,851
<F>
<F1> Pursuant to Rule 457(c) under the Securities Act of 1933, the registration
fee applicable to the Common Stock is calculated upon the basis of the
average high and low sales price of the Common Stock as reported on the
New York Stock Exchange Composite Tape on May 16, 1995.
<F2> Includes preferred stock purchase rights. Prior to the occurrence of
certain events, these rights will not be exercisable or evidenced
separately from the Common Stock.
The Registrant hereby amends this Registration Statement upon such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
SUBJECT TO COMPLETION, DATED MAY 22, 1995
State Street Boston Corporation
2,986,111 Shares of Common Stock
(par value $1.00 per share)
The Common Stock of State Street Boston Corporation, a Massachusetts
corporation ("State Street"), par value $1.00 per share (the "Common Stock")
offered hereby is held by Kemper Financial Services, Inc. ("Kemper" or
the "Selling Stockholder"), who may from time to time offer for sale shares
of the Common Stock. See "Selling Stockholder." State Street will not receive
any proceeds from the sale by Kemper of the Common Stock.
The Selling Stockholder has advised State Street that it proposes to offer
the Common Stock offered hereby for sale, from time to time, to purchasers
directly, or through brokers in brokerage transactions on the New York Stock
Exchange, or to underwriters or dealers in negotiated transactions or in a
combination of such methods of sale, at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Brokers, dealers and
underwriters that participate in the distribution of the Common Stock offered
hereby may be deemed to be underwriters under the Securities Act of 1933 as
amended, and together with the rules and regulations thereunder (the "Securities
Act"), and any discounts or commissions received by them from the Selling
Stockholder and any profit on the resale of the Common Stock offered hereby by
them may be deemed to be underwriting discounts and commissions under the
Securities Act. The Selling Stockholder may be deemed to be an underwriter under
the Securities Act. The Selling Stockholder will pay all applicable stock
transfer taxes, brokerage commissions, underwriting discounts or commissions and
any fees of Selling Stockholder's counsel, but State Street will bear all other
expenses in connection with the offering made hereunder. State Street has
agreed to indemnify the Selling Stockholder and underwriters of the Selling
Stockholder against certain liabilities, including certain liabilities under the
Securities Act, in connection with the registration and the offering and sale of
the Common Stock offered hereby. See "Plan of Distribution".
The Common Stock is listed on the New York Stock Exchange (the "NYSE")
under the symbol "STT". The last reported sale price of the Common Stock on
the NYSE Composite Tape on May 16, 1995 was $32 7/8 per share.
If necessary, certain information relating to Kemper, the terms of each
sale of Common Stock offered hereby, including the public offering price, the
names of any underwriters or agents, the compensation, if any, of such
underwriters or agents and the other terms in connection with the sale of the
Common Stock, in respect of which this Prospectus is delivered will be set
forth in an accompanying Prospectus Supplement (the "Prospectus Supplement").
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is May 22, 1995.
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No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus or any Prospectus
Supplement and, if given or made, such information or representations must not
be relied upon as having been authorized. This Prospectus and any Prospectus
Supplement does not constitute an offer to sell or the solicitation of an offer
to buy any securities other than the securities to which it relates or an offer
to sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. Neither the
delivery of this Prospectus or any Prospectus Supplement nor any sale made
hereunder or thereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of State Street since the date
hereof or thereof or that the information contained herein or therein is
correct as of any time subsequent to the date of such information.
STATEMENT OF AVAILABLE INFORMATION
State Street is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
public reference facilities of the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549; and at the Commission's regional offices at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The shares of State
Street's Common Stock including the associated preferred share purchase rights
under the Rights Agreement, dated as of September 15, 1988, as amended, are
listed on the NYSE. Reports, proxy statements and other information concerning
State Street can also be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
State Street has filed with the Commission a Registration Statement under
the Securities Act with respect to the Common Stock to which this Prospectus
relates. This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to State Street and the Common Stock, reference is
made to the Registration Statement, including the exhibits thereto. The
Registration Statement may be inspected by anyone without charge at the
principal office of the Commission in Washington, D.C., and copies of all or
part of it may be obtained from the Commission upon payment of the prescribed
fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission by State
Street are incorporated in this Prospectus by reference and made a part hereof:
(1) State Street's Annual Report on Form 10-K for the year ended December
31, 1994, filed with the Commission on March 29, 1995, including
portions of State Street's Annual Report to Stockholders for the year
ended December 31, 1994 (excluding management's discussion and
analysis and the financial statements and schedules thereto), and
definitive proxy statement dated March 14, 1995.
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(2) State Street's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995, filed with the Commission on May 15, 1995.
(3) State Street's Current Report on Form 8-K as filed with the
Commission on May 19, 1995 containing restated financial information
for the year ended December 31, 1994 and prior periods and other
restated information to reflect the acquisition of IFTC Holdings,
Inc. in a pooling of interests transaction.
(4) The description of State Street's Preferred Share Purchase Rights
included in State Street's effective Registration Statement on Form
8-A filed with the Commission on September 30, 1988 as amended by
Amendment dated as of September 20, 1990 filed with the Commission
on Form 8 on October 19, 1990.
Each document or report subsequently filed by State Street with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date hereof and prior to the termination of the offering of the
Common Stock shall be deemed to be incorporated by reference into this
Prospectus and to be a part of this Prospectus from the date of filing of such
document. Any statement contained herein, or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein, shall
be deemed to be modified or superseded for purposes of the Registration
Statement and this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement or
this Prospectus.
State Street will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Written requests should be directed to:
Secretary, State Street Boston Corporation, 225 Franklin Street, Boston,
Massachusetts 02110. Telephone requests may be directed to State Street at
(617) 786-3000.
STATE STREET BOSTON CORPORATION
State Street Boston Corporation ("State Street") is a bank holding company
organized under the laws of The Commonwealth of Massachusetts. State Street
has three lines of business: financial asset services, investment management
and commercial lending.
State Street was organized in 1970 and conducts its business principally
through its subsidiary, State Street Bank and Trust Company ("State Street
Bank"), which traces its beginnings to the founding of the Union Bank in 1792.
The charter under which State Street Bank now operates was authorized by a
special act of the Massachusetts Legislature in 1891, and its present name was
adopted in 1960.
State Street is the fourth largest provider of trust services in the
United States as ranked on the basis of 1993 fiduciary compensation. State
Street had more than $1.7 trillion of assets under custody, $210 billion of
bonds under trusteeship, and $160 billion of assets under management at year-
end 1994. Ranked on the basis of balance sheet assets as of June 1994, State
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Street Bank is the 23rd largest commercial bank in the United States. State
Street's total assets were $22.5 billion at December 31, 1994, of which $16.7
billion, or 74%, were investment securities and money market assets and $3.2
billion, or 14%, were loans.
Services are provided from offices in the United States, as well as from
offices in Canada, Grand Cayman, Netherland Antilles, the United Kingdom,
France, Belgium, Luxembourg, Denmark, Germany, United Arab Emirates, Hong Kong,
Taiwan, Japan, Australia, and New Zealand. State Street's executive offices
are located at 225 Franklin Street, Boston, Massachusetts 02110 (telephone
(617) 786-3000).
RECENT DEVELOPMENTS
On January 31, 1995, State Street completed its acquisition of Investors
Fiduciary Trust Company ("IFTC"), a trust company based in Kansas City,
Missouri that provides custodial, trust and agency services to mutual funds and
other entities. Pursuant to the terms of an Acquisition Agreement, dated as of
September 27, 1994, by and among State Street, Kemper and DST Systems, Inc.
("DST"), State Street acquired all of the issued and outstanding capital stock
of IFTC Holdings, Inc., the holding company of IFTC, from DST and Kemper. In
exchange, DST and Kemper each received 2,986,111 shares of Common Stock. State
Street accounted for the acquisition of IFTC as a pooling of interests.
Pursuant to a Registration Rights Agreement, dated as of January 31, 1995, (the
"Registration Rights Agreement"), State Street agreed to register one-half of
the total number of shares of Common Stock received by DST and Kemper.
Pursuant to an agreement between Kemper and DST it has been agreed that Kemper
would be entitled to sell the shares of Common Stock to which this Prospectus
relates.
USE OF PROCEEDS
The sale of the Common Stock offered hereby is for the account of Kemper.
Accordingly, State Street will not receive any of the proceeds from the sale by
Kemper of the Common Stock.
DIVIDENDS
As a bank holding company, State Street is a legal entity separate and
distinct from State Street Bank (and its other non-bank subsidiaries). State
Street's principal source of funds is dividends from State Street Bank (and its
other non-bank subsidiaries). The right of State Street to participate as a
stockholder in any distribution of assets of a subsidiary upon its liquidation
or reorganization or otherwise is subject to the prior claims by creditors of
the subsidiary, including obligations for federal funds purchased and
securities sold under repurchase agreements, as well as deposit liabilities.
Payment of dividends by State Street Bank is subject to provisions of the
Massachusetts banking law which provide that dividends may be paid out of net
profits provided (i) capital stock and surplus remain unimpaired, (ii) dividend
and retirement fund requirements of any preferred stock have been met, (iii)
surplus equals or exceeds capital stock, and (iv) there are deducted from net
profits any losses and bad debts, as defined, in excess of reserves
specifically established therefor. Under the Federal Reserve Act, the approval
of the Board of Governors of the Federal Reserve System would be required if
dividends declared by State Street Bank in any year would exceed the total of
its net profits for that year combined with retained net profits for the
preceding two years, less any required transfers to surplus. Under applicable
federal and state law restrictions, at December 31, 1994 State Street Bank
could have declared and paid dividends of $426,554,000 without regulatory
approval. Future dividend payments of State Street Bank and its non-bank
subsidiaries cannot be determined at this time.
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ECONOMIC CONDITIONS AND GOVERNMENT POLICIES
Economic policies of the government and its agencies influence the
operating environment of State Street. Monetary policy conducted by the
Federal Reserve Board directly affects the level of interest rates and overall
credit conditions of the economy. Policy instruments utilized by the Federal
Reserve Board include open market operations in U.S. Government securities,
changes in reserve requirements for depository institutions, and changes in the
discount rate and availability of borrowing from the Federal Reserve.
DESCRIPTION OF CAPITAL STOCK
State Street's authorized capital stock consists of 112,000,000 shares of
Common Stock, $1.00 par value per share, and 3,500,000 shares of Preferred
Stock, no par value. As of March 31, 1995, 82,546,000 shares of Common Stock
were issued and each such share is fully paid and non-assessable. There are no
shares of Preferred Stock outstanding.
Common Stock
Each share of Common Stock is entitled to one vote on all matters voted
upon by the stockholders. Subject to the rights of any Preferred Stock that
might hereafter be issued, holders of Common Stock are entitled to receive
dividends when and if declared by the Board of Directors of State Street from
funds legally available therefor. The principal source of funds for payment of
dividends by State Street is dividends paid by State Street Bank. See
"Dividends." In any liquidation, dissolution or winding up of State Street,
holders of Common Stock are entitled to share ratably in State Street's assets
remaining after payment of creditors subject to the rights of any Preferred
Stock that might hereafter be issued. Holders of Common Stock have no
preemptive or other subscription rights, and there are no conversion,
redemption or sinking fund provisions for the Common Stock. State Street Bank
is the Transfer Agent and Registrar for the Common Stock of State Street.
Preferred Stock
State Street is authorized to issue Preferred Stock in series and to fix
the relative powers, preferences and rights appertaining thereto, including
dividend rates, voting rights, conversion rights, liquidation preferences and
redemption, retirement or sinking fund provisions.
Stockholders Rights Agreement
In 1988, State Street declared a dividend of one preferred share purchase
right for each outstanding share of Common Stock. In 1992, State Street's
Common Stock was split two-for-one in the form of a 100% stock dividend to
stockholders. After giving effect to the split, upon the occurrence of certain
events, a right may be exercised to purchase one two-hundredths share of a
series of participating preferred stock at an exercise price of $75, subject to
adjustment. The rights become exercisable if a party acquires or obtains the
right to acquire 20% or more of State Street's Common Stock or after
commencement or public announcement of an offer for 20% or more of State
Street's Common Stock. When exercisable, under certain conditions, each right
also entitles the holder thereof to purchase shares of Common Stock, of either
State Street or of the acquiror, having a market value of two times the then
current exercise price of that right.
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The rights expire in 1998 and may be redeemed at a price of $.005 per
right at any time prior to expiration or the acquisition of 20% of State
Street's Common Stock. Also, under certain circumstances, the rights may be
redeemed after they become exercisable and may be subject to automatic
redemption.
SELLING STOCKHOLDER
The Common Stock offered by this Prospectus was initially issued to
Kemper, the Selling Stockholder, pursuant to the Acquisition Agreement. See
"Recent Developments." Kemper, incorporated in Delaware, is a registered
investment adviser. Kemper is a wholly-owned subsidiary of Kemper Financial
Companies, Inc., an approximately 97% owned subsidiary of Kemper Corporation, a
diversified financial services company whose stock is traded on the NYSE.
Kemper Corporation has announced that it has entered into a definitive
agreement pursuant to which it will be acquired in a merger transaction by an
investment group comprised of Zurich Insurance Group and Insurance Partners. In
connection with the merger, Zurich Insurance Group will acquire Kemper. Kemper
has not held any position, office or other material relationship with State
Street or any of its predecessors or affiliates within the past three years
except as a result of the Acquisition Agreement. Immediately following the
closing under the Acquisition Agreement, Kemper beneficially owned 2,986,111
shares of Common Stock. Kemper may, but is not required to, offer pursuant to
this Prospectus an amount up to all of the Common Stock held by it. As a
result, and because the offering may or may not be an underwritten offering on
a firm commitment basis, no estimate can be given as of the date hereof as to
the amount of Common Stock to be offered for sale by Kemper or as to the amount
of Common Stock that will be held by Kemper upon termination of such offering.
See "Plan of Distribution."
PLAN OF DISTRIBUTION
The Selling Stockholder has advised State Street that it proposes to offer
the Common Stock offered hereby for sale, from time to time, to purchasers
directly, or through brokers in brokerage transactions on the NYSE, or to
underwriters or dealers in negotiated transactions or in a combination of such
methods of sale, at fixed prices which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices.
Brokers, dealers and underwriters that participate in the distribution of
the Common Stock offered hereby may be deemed to be underwriters under the
Securities Act, and any discounts or commissions received by them from the
Selling Stockholder and any profit on the resale of the Common Stock offered
hereby may be deemed to be underwriting discounts and commissions under the
Securities Act. The Selling Stockholder may be deemed to be an underwriter
under the Securities Act. Those who act as underwriter, broker, dealer or
agent in connection with the sale of the Common Stock offered hereby will be
selected by Kemper and may have other business relationships with State Street
and its subsidiaries or affiliates in the ordinary course of business.
At any time a particular offer of Common Stock offered hereby is made by
Kemper, if required, a Prospectus Supplement will be distributed which will set
forth the aggregate amounts of Common Stock being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents,
any discounts, commissions and other items constituting compensation from
Kemper and any discounts, commissions or concessions allowed or reallowed or
paid to dealers. Such Prospectus Supplement and, if necessary, a post-
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effective amendment to the Registration Statement of which this Prospectus is a
part will be filed with the Commission to reflect the disclosure of additional
information with respect to the distribution of the Common Stock offered
hereby.
The Registration Rights Agreement provides that State Street indemnify
Kemper against certain liabilities, including liabilities under the Securities
Act. The Registration Rights Agreement also provides for the indemnification
of State Street by Kemper for certain liabilities, including liabilities under
the Securities Act. In addition, under the Registration Rights Agreement,
State Street's obligation to indemnify extends to those who participate in the
distribution of the Common Stock offered hereby as underwriters for Kemper.
Also pursuant to the Registration Rights Agreement, the Selling Stockholder
will pay all applicable stock transfer taxes, brokerage commissions,
underwriting discounts or commissions and any fees of Selling Stockholder s
counsel but State Street has agreed to pay substantially all fees and expenses
incident to the preparation, filing, amending and supplementing of the
Registration Statement of which this Prospectus is a part and any registration
statements or qualifying documents filed under any state Blue Sky or securities
laws.
VALIDITY OF THE COMMON STOCK
The validity of the Common Stock offered hereby has been passed upon by
Ropes & Gray, Boston, Massachusetts. Truman S. Casner, a director of State
Street, is a partner of Ropes & Gray. Mr. Casner owns beneficially a total of
5,716 shares of Common Stock. In addition, a total of 600 shares of Common
Stock of State Street were owned beneficially by Ropes & Gray attorneys
participating in the preparation of the Registration Statement of which this
Prospectus is a part.
EXPERTS
The consolidated financial statements of State Street and its subsidiaries
appearing in State Street's Current Report on Form 8-K filed on May 19, 1995,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
With respect to the unaudited condensed consolidated interim financial
information for the three month period ended March 31, 1995, incorporated by
reference in this Prospectus, Ernst & Young LLP have reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report, included in State
Street's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995,
and incorporated herein by reference, states that they did not audit and they
do not express an opinion on that interim financial information. Accordingly,
the degree of reliance on their report on such information should be restricted
in light of the limited nature of the review procedures applied. The
independent auditors are not subject to the liability provisions of Section 11
of the Securities Act for their report on the unaudited interim financial
information because that report is not a "report" or a "part" of the
Registration Statement prepared or certified by the auditors within the meaning
of Sections 7 and 11 of the Securities Act.
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No person has been
authorized to give any State Street Boston
information or to make any Corporation
representations other than
those contained in this
Prospectus or any Prospectus 2,986,111 Shares of Common
Supplement and, if given or Stock
made, such information or (par value $1.00 per share)
representations must not be
relied upon as having been
authorized. This Prospectus
and any Prospectus Supplement
does not constitute an offer
to sell or the solicitation of
an offer to buy any securities
other than the securities to
which it relates or an offer
to sell or the solicitation of
an offer to buy such
securities in any
circumstances in which such
offer or solicitation is PROSPECTUS
unlawful. Neither the
delivery of this Prospectus or
any Prospectus Supplement nor
any sale made hereunder or
thereunder shall, under any
circumstances, create any
implication that there has
been no change in the affairs
of State Street since the date
hereof or thereof or that the
information contained herein
or therein is correct as of
any time subsequent to the
date of such information.
May 22, 1995
TABLE OF CONTENTS
Page
Prospectus
Statement of Available
Information . . . . . . . . 2
Incorporation of Certain
Documents by Reference . . 2
State Street Boston
Corporation . . . . . . . . 3
Recent Developments . . . . 4
Use of Proceeds . . . . . . 4
Dividends . . . . . . . . . 4
Economic Conditions and
Government Policies . . . . 5
Description of Capital
Stock . . . . . . . . . . 5
Selling Stockholder . . . . 6
Plan of Distribution . . . 6
Validity of the Common
Stock . . . . . . . . . . 7
Experts . . . . . . . . . . 7
Page 9 of 39
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate of the expenses which will be incurred
in connection with the issuance and distribution of the securities being
registered.
To be borne by State Street:
Registration Fee . . . . . . . . . . . . . . . . . . $33,851
Transfer Agent and Registrar Fees. . . . . . . . . . *
Printing . . . . . . . . . . . . . . . . . . . . . *
Legal Fees and Expenses . . . . . . . . . . . . . . *
Accounting Fees. . . . . . . . . . . . . . . . . . . *
Listing Fees. . . . . . . . . . . . . . . . . . . . *
Blue Sky Fees and Expenses . . . . . . . . . . . . *
Miscellaneous. . . . . . . . . . . . . . . . . . . . *
Total . . . . . . . . . . . . . . . . . . . . . $ *
* To be filed by amendment
Item 15. Indemnification of Directors and Officers
Section 67 of Chapter 156B of the General Laws of Massachusetts
provides that to the extent specified in or authorized by the articles of
organization, a by-law adopted by shareholders or a vote adopted by the holders
of the majority of shares of stock entitled to vote on the election of
directors, a corporation can indemnify directors, officers, employees and other
agents of the corporation (and persons who serve at its request as directors,
officers, employees or other agents of another organization or who serve at its
request in any capacity with respect to any employee benefit plan) except as to
any matter as to which such person shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of the corporation or to the extent that such
matter relates to service with respect to an employee benefit plan in the best
interests of the participants or beneficiaries of such employee benefit plan.
The Articles of Organization of State Street (Article 6) provide the
following:
The corporation shall to the fullest extent legally permissible
indemnify each person who is or was a director, officer, employee or
other agent of the corporation and each person who is or was serving
at the request of the corporation as a director, trustee, officer,
employee or other agent of another corporation or of any partnership,
joint venture, trust, employee benefit plan or other enterprise or
organization against all liabilities, costs and expenses, including
but not limited to amounts paid in satisfaction of judgments, in
settlement or as fines and penalties, and counsel fees and
disbursements, reasonably incurred by him in connection with the
defense or disposition of or otherwise in connection with or
resulting from any action, suit or other proceeding, whether civil,
criminal, administrative or investigative, before any court or
administrative or legislative or investigative body, in which he may
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be or may have been involved as a party or otherwise or with which he
may be or may have been threatened, while in office or thereafter, by
reason of his being or having been such a director, officer,
employee, agent or trustee, or by reason of any action taken or not
taken in any such capacity, except with respect to any matter as to
which he shall have been finally adjudicated by a court of competent
jurisdiction not to have acted in good faith in the reasonable belief
that his action was in the best interests of the corporation (any
person serving another organization in one or more of the indicated
capacities at the request of the corporation who shall not have been
adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of such
other organization shall be deemed so to have acted in good faith
with respect to the corporation) or to the extent that such matter
relates to service with respect to an employee benefit plans in the
best interest of the participants or beneficiaries of such employee
benefit plan. Expenses, including but not limited to counsel fees
and disbursements, so incurred by any such person in defending any
such action, suit or proceeding, shall be paid from time to time by
the corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
the person indemnified to repay the amounts so paid if it shall
ultimately be determined that indemnification of such expenses is not
authorized hereunder.
If, in an action, suit or proceeding brought by or in the name
of the corporation, a director of the corporation is held not liable
for monetary damages, whether because that director is relieved of
personal liability under the provisions of this Article Six of the
Articles of Organization, or otherwise, that director shall be deemed
to have met the standard of conduct set forth above and to be
entitled to indemnification for expenses reasonably incurred in the
defense of such action, suit or proceeding.
As to any matter disposed of by settlement by any such person,
pursuant to a consent decree or otherwise, no such indemnification
either for the amount of such settlement or for any other expenses
shall be provided unless such settlement shall be approved as in the
best interests of the corporation, after notice that it involves such
indemnification, (a) by vote of a majority of the disinterested
directors then in office (even though the disinterested directors be
less than a quorum), or (b) by any disinterested person or persons to
whom the question may be referred by vote of a majority of such
disinterested directors, or (c) by vote of the holders of a majority
of the outstanding stock at the time entitled to vote for directors,
voting as a single class, exclusive of any stock owned by any
interested person, or (d) by any disinterested person or persons to
whom the question may be referred by vote of the holders of a
majority of such stock. No such approval shall prevent the recovery
from any such director, officer, employee, agent or trustee of any
amounts paid to him or on his behalf as indemnification in accordance
with the preceding sentence if such person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in
good faith in the reasonable belief that his action was in the best
interests of the corporation.
The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which any director,
officer, employee, agent or trustee may be entitled or which may
lawfully be granted to him. As used herein, the terms "director",
"officer", "employee", "agent" and "trustee" include their respective
executors, administrators and other legal representatives, an
"interested" person is one against whom the action, suit or other
proceeding in question or another action, suit or other proceeding on
Page II-2
Page 11 of 39
the same or similar grounds is then or had been pending or
threatened, and a "disinterested" person is a person against whom no
such action, suit or other proceeding is then or had been pending or
threatened.
By action of the board of directors, notwithstanding any
interest of the directors in such action, the corporation may
purchase and maintain insurance, in such amounts as the board of
directors may from time to time deem appropriate, on behalf of any
person who is or was a director, officer, employee or other agent of
the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee or other agent
of another corporation or of any partnership, joint venture, trust,
employee benefit plan or other enterprise or organization against any
liability incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power
to indemnify him against such liability.
A director of this corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director notwithstanding any provision of law
imposing such liability, provided, however, that this paragraph of
Article Six shall not eliminate the liability of a director to the
extent such liability is imposed by applicable law (i) for any breach
of the director's duty of loyalty to this corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
for any transaction from which the director derived an improper
personal benefit, or (iv) for paying a dividend, approving a stock
repurchase or making loans which are illegal under certain provisions
of Massachusetts law, as the same exists or hereafter may be amended.
If Massachusetts law is hereafter amended to authorize the further
limitation of the legal liability of the directors of this
corporation, the liability of the directors shall then be deemed to
be limited to the fullest extent then permitted by Massachusetts law
as so amended. Any repeal or modification of this paragraph of this
Article Six which may hereafter be effected by the stockholders of
this corporation shall be prospective only, and shall not adversely
affect any limitation on the liability of a director for acts or
omissions prior to such repeal or modification.
In addition, State Street maintains a directors' and officers'
liability insurance policy.
Item 16. Exhibits
Exhibit
Number Description
4.1 State Street Boston Corporation's Restated
Articles of Organization, as amended<F1>
4.2 State Street Boston Corporation's By-Laws, as
amended<F2>
4.3 Form of Common Stock Certificate<F3>
4.4 Rights Agreement dated as of September 15, 1988
between State Street Boston Corporation and The
First National Bank of Boston, Rights Agent<F4>
Page II-3
Page 12 of 39
4.5 Amendment to Rights Agreement dated as of
September 20, 1990 between State Street Boston
Corporation and The First National Bank of
Boston, Rights Agent<F5>
4.6 Registration Rights Agreement dated as of January
31, 1995 by and among State Street Boston
Corporation, Kemper Financial Services, Inc. and
DST Systems, Inc.<F3>
5.1 Opinion of Ropes & Gray, as to the legality of
the Common Stock being registered<F3>
15.1 Letter of Ernst & Young re: Unaudited Interim
Financial Information<F3>
23.1 Consent of Ropes & Gray (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP<F3>
___________
<f>
<F1> Incorporated by reference to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1988.
<F2> Incorporated by reference to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1992.
<F3> Filed herewith.
<F4> Incorporated by reference to Registrant's Current Report on Form 8-K
dated September 30, 1988.
<F5> Incorporated by reference to Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1990.
Item 17. Undertakings
(a) Rule 415 Offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, unless the information
required to be included in such post-effective amendment is
contained in a periodic report filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and incorporated herein by reference;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement,
unless the information required to be included in such post-
effective amendment is contained in a periodic report filed by
Page II-4
Page 13 of 39
the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and incorporated herein by
reference; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant's Annual Report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) Incorporated Annual and Quarterly Reports.
The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to
securityholders that is incorporated by reference in the prospectus
and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information is required to be presented by Article
3 of Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such financial
information.
(d) Acceleration of Effectiveness.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described in Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication
of such issue.
Page II-5
Page 14 of 39
SIGNATURES
STATE STREET BOSTON CORPORATION
Pursuant to the requirements of the Securities Act of 1933, State
Street Boston Corporation certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boston, Commonwealth of
Massachusetts, on the 18th day of May, 1995.
STATE STREET BOSTON CORPORATION
By /s/ REX S. SCHUETTE
REX S. SCHUETTE
Senior Vice President and Comptroller
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on May 18, 1995 by the following
persons in the capacities indicated. Each person whose signature appears below
hereby authorizes David A. Spina, Rex S. Schuette and John R. Towers and each
with full power of substitution, to execute in the name and on behalf of such
person any amendment or any post-effective amendment to this Registration
Statement and to file the same, with exhibits thereto, and other documents in
connection therewith, making such changes in this Registration Statement as the
Registrant deems appropriate, and appoints each of David A. Spina, Rex S.
Schuette and John R. Towers, each with full power of substitution, attorney-
in-fact to sign any amendment to this Registration Statement and to file the
same, with exhibits thereto, and other documents in connection therewith.
/s/ MARSHALL N. CARTER Chairman, Chief Executive
MARSHALL N. CARTER Officer and Director
(principal executive officer)
/s/ DAVID A. SPINA Vice Chairman, Chief Financial
DAVID A. SPINA Officer, Treasurer and Director
(principal financial officer)
/s/ REX S. SCHUETTE Senior Vice President and Comptroller
REX S. SCHUETTE (principal accounting officer)
/s/ TENLEY E. ALBRIGHT Director
TENLEY E. ALBRIGHT
/s/ JOSEPH A. BAUTE Director
JOSEPH A. BAUTE
Page II-6
Page 15 of 39
/s/ I. MACALLISTER BOOTH Director
I. MACALLISTER BOOTH
/s/ JAMES I. CASH Director
JAMES I. CASH
/s/ TRUMAN S. CASNER Director
TRUMAN S. CASNER
/s/ NADER F. DAREHSHORI Director
NADER F. DAREHSHORI
/s/ LOIS D. JULIBER Director
LOIS D. JULIBER
/s/ CHARLES F. KAYE Director
CHARLES F. KAYE
/s/ CHARLES R. LAMANTIA Director
CHARLES R. LAMANTIA
/s/ JOHN M. KUCHARSKI Director
JOHN M. KUCHARSKI
Director
DENNIS J. PICARD
Director
DAVID B. PERINI
Director
BERNARD W. REZNICEK
Director
ALFRED POE
Director
ROBERT E. WEISSMAN
Page II-7
Page 16 of 39
EXHIBIT INDEX
Number Description Method of Filing Page No.
4.1 State Street Boston Previously filed with the
Corporation's Restated Securities and Exchange
Articles of Commission as Exhibit 3.1
Organization, as to Registrant's Annual
amended Report on Form 10-K for the
year ended December 31,
1988 and incorporated by
reference
4.2 State Street Boston Previously filed with the
Corporation's By-Laws, Securities and Exchange
as amended Commission as Exhibit 3.2
to Registrant's Annual
Report on Form 10-K for the
year ended December 31,
1992 and incorporated by
reference
4.3 Form of Common Stock Filed herewith 18
Certificate
4.4 Rights Agreement dated Previously filed with the
as of September 15, Securities and Exchange
1988 between State Commission as Exhibit 4 to
Street Boston Registrant's Current Report
Corporation and The on Form 8-K dated September
First National Bank of 30, 1988 and incorporated
Boston, Rights Agent by reference
4.5 Amendment to Rights Previously filed with the
Agreement dated as of Securities and Exchange
September 20, 1990 Commission as Exhibit 4 to
between State Street Registrant's Quarterly
Boston Corporation and Report on Form 10-Q for the
The First National quarter ended September 30,
Bank of Boston, Rights 1990 and incorporated by
Agent reference
4.6 Registration Rights Filed herewith 20
Agreement dated as of
January 31, 1995 by
and among State Street
Boston Corporation,
Kemper Financial
Services, Inc. and DST
Systems, Inc.
5.1 Opinion of Ropes & Filed herewith 36
Gray as to the
legality of the Common
Stock
15.1 Letter re: Unaudited Filed herewith 38
Interim Financial
Information
23.1 Consent of Ropes & Filed herewith 36
Gray (included in
Exhibit 5.1)
23.2 Consent of Ernst & Filed herewith 39
Young LLP
Page 17 of 39
NUMBER SHARES
CU140453
COMMON COMMON
PAR VALUE $1. PER SHARE PAR VALUE $1. PER SHARE
INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
STATE STREET BOSTON CORPORATION CUSIP 857473 10 2
THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF BOSTON, MA OR
NEW YORK, NY
This Certifies that
SPECIMEN
is the owner of
See Reverse
For Certain
Definitions
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK OF
State Street Boston Corporation, transferable on the books of the corporation by
the holder hereof in person or by duly authorized attorney upon surrender of
this certificate properly endorsed. This certificate and the shares
represented thereby are issued and shall be subject to the laws of The
Commonwealth of Massachusetts and to the Articles of Organization and By-Laws
of the corporation as now in effect or hereafter amended. This certificate is
not valid unless countersigned by the Transfer Agent and registered by the
Registrar.
Witness the facsimile signatures of the duly authorized officers of State
Street Boston Corporation.
DATED:
/s/ Marshall N. Carter /s/ David A. Spina
Chairman Treasurer
Countersigned and Registered:
State Street Bank and Trust Company
(Boston) Transfer Agent and
Registrar
Authorized Signature
BANKNOTE CORPORATION OF AMERICA
PAGE 1
Page 18 of 39
STATE STREET BOSTON 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 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 in the corporation's Articles of
Organization, of the preferences, voting powers, qualifications and special and
relative rights of the shares of each class (and each series of a class, if
any) of its capital stock authorized to be issued as of the date of such
request. Requests for such copies should be directed to State Street Boston
Corporation, 225 Franklin Street, Boston, Massachusetts 02110.
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in the Rights Agreement between State Street Boston
Corporation and The First National Bank of Boston dated as of September 15,
1988 as amended by an Agreement dated as of September 20, 1990 (the "Rights
Agreement"), the terms of which are hereby incorporated herein by reference and
copies of which are on file at the principal executive offices of State Street
Boston Corporation. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. State Street Boston Corporation will
mail to the holder of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. As described in the Rights
Agreement, Rights issued to any Person who becomes an Acquiring Person (as
defined in the Rights Agreement) shall become null and void.
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 _________
(Cust) (Minor)
under Uniform Gifts to Minors Act ___________
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
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 Including Zip Code
of Assignee
_________________________________________________________________
_________________________________________________________________
Shares of the capital stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint _______________________________
__________________________________________________ Attorney to transfer the
said stock on the books of the within-named Corporation with full power of
substitution in the premises.
Dated,__________________
_______________________________
NOTICE: The signatures 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.
Page 19 of 39
REGISTRATION RIGHTS AGREEMENT
This AGREEMENT (the "Agreement") is made as of January 31, 1995 by and
among State Street Boston Corporation, a Massachusetts corporation ("State
Street"), Kemper Financial Services, Inc., a Delaware corporation ("Kemper")
and DST Systems, Inc., a Missouri corporation ("DST"). Kemper and DST will be
herein referred to individually as "Holder" and collectively as the "Holders".
WHEREAS, on September 27, 1994 State Street and the Holders entered into
an Acquisition Agreement (the "Acquisition Agreement") whereby State Street
will acquire, from the Holders, all of the issued and outstanding capital stock
of IFTC Holdings, Inc., the sole stockholder of Investors Fiduciary Trust
Company, in exchange for 5,625,000 shares, subject to adjustment, of the Common
Stock, $1.00 par value per share, of State Street, pursuant to the Agreement
(the "State Street Stock").
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Definitions.
(a) "Closing Date" shall mean the closing date specified in the
Acquisition Agreement.
(b) The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement
or similar document in compliance with the Securities Act, and the
automatic effectiveness or the declaration or ordering of effectiveness of
such registration statement or document;
(c) The term "Registrable Securities" means the shares of State
Street Stock issued pursuant to the Acquisition Agreement and held
continuously from the Closing Date by either Kemper or DST, except as
otherwise provided herein.
(d) "Commission" shall mean the Securities and Exchange Commission,
or, if at any time after the execution of this Agreement such Commission
is not existing and performing the duties now assigned to it under the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose, then "Commission" shall mean the body performing
such duties at such time.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, and the rules and regulations promulgated
thereunder, all as the same shall be amended from time to time.
PAGE 1
Page 20 of 39
(f) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules, regulations, and forms promulgated
thereunder, all as the same shall be amended from time to time.
(g) The term "person" shall mean an individual, corporation,
association, partnership, joint venture, trust, unincorporated
organization, government or political subdivision thereof or governmental
agency.
(h) The terms "Form S-1," "Form S-3," "Form S-4" and "Form S-8" mean
such respective forms under the Securities Act as in effect on the date
hereof or any successor registration forms to Form S-1, Form S-3, Form S-4
and Form S-8, respectively, under the Securities Act subsequently adopted
by the Commission.
(i) The term "Affiliate" shall mean any person directly or
indirectly controlling, controlled by or under common control with such
other person.
(j) "Registration Period" shall be the period commencing on the date
hereof and continuing through the fifth anniversary of the Closing Date.
2. Registration Rights
2.1. Shelf Registration. State Street shall file as promptly as
practicable after the date, but in no event later than five business days,
on which State Street files with the Commission consolidated financial
results with IFTC Holdings, Inc. consolidated with Investors Fiduciary
Trust Company covering the period specified by the Commission's Accounting
Series Release No. 135 (January 18, 1973) a registration statement on Form
S-3 (the "Shelf Registration Statement") providing for the sale by the
Holders of the Registrable Securities, pursuant to Rule 415 of the
Commission under the Securities Act, and/or any similar rule that may be
adopted by the Commission, with respect to not more than 50% of the
Registrable Securities. State Street agrees to use its reasonable efforts
to cause the Shelf Registration Statement to be declared effective as
promptly as practicable and to keep such Shelf Registration Statement
continuously effective for a period of 180 days. So long as such Shelf
Registration Statement is effective, any Holder desiring to sell State
Street Stock thereunder shall give notice to State Street by facsimile
transmission to the number and person specified by State Street in writing
to the Holders (or if such information has not been provided, to the
person designated by State Street at the facsimile number set forth in
Section 5.2) on the date of the initiation of the sale of such State
Street Stock.
2.2. Request for Registration.
(a) Until the expiration of the Registration Period, if State Street
shall receive a written request from either of the Holders that State
Street effect the registration under the Securities Act of the Registrable
Securities for which the aggregate offering price is expected to be at
PAGE 2
Page 21 of 39
least fifty million dollars (as determined using the average of the daily
high and low prices for shares of State Street Stock during the thirty
NASDAQ National Market System trading days ending on the fifth business
day prior to the Closing Date), then State Street shall, within five days
of the receipt thereof, give written notice of such request to all Holders
and shall, subject to the limitations of this Section 2.2, use its
reasonable efforts to effect such a registration as soon as practicable
and in any event to use best efforts to file within 75 days of the receipt
of such request a registration statement under the Securities Act covering
all the Registrable Securities which the Holders shall in writing request
(given within 15 days of receipt of the notice given by State Street
pursuant to this Section 2.2(a)) to be included in such registration and
to use its reasonable efforts to have such registration statement become
effective. Kemper and DST shall each be entitled to exercise its right to
demand registration under this Section 2.2(a) on only one occasion.
(b) If the Holder requesting such registration wishes to distribute
the Registrable Securities covered by its request by means of an
underwriting, it shall so advise State Street as part of its request made
pursuant to this Section 2.2 and State Street shall include such
information, and shall designate the managing underwriter or underwriters,
which managing underwriter or underwriters shall be of a national
reputation comparable to or better than Goldman, Sachs & Co., in the
written notice referred to in Section 2.2(a). In such event, the right of
any Holder to include its Registrable Securities in such registration
shall be conditioned upon such Holder's participation in such underwriting
and the inclusion of such Holder's Registrable Securities in the
underwriting. All Holders proposing to distribute their securities
through such underwriting shall, together with State Street as provided in
Section 3.1(g), enter into an underwriting agreement with the managing
underwriter or underwriters selected for such underwriting. In the case of
a registration pursuant to Section 2.2(a), if the managing underwriter
advises the Holders and State Street in writing that marketing factors
require a limitation of the number of shares to be underwritten, then
State Street shall include in such registration (A) first, the Registrable
Securities requested to be registered by the Holder exercising its demand
registration right pursuant to Section 2.2(a); (B) second, the Registrable
Securities requested to be registered by the other Holder pursuant to
Section 2.3 hereof; and (C) third, any other securities requested to be
included in such registration; provided, however, if the limitation on the
number of shares advised by the managing underwriter is not acceptable to
the Holder requesting registration pursuant to Section 2.2 (a), then the
Holder shall have a period of seven business days after such Holder
receives written advice of the limitation to withdraw from such
registration. If the Holder withdraws from such registration within this
time period, such Holder shall be deemed not to have requested
registration pursuant to this Section 2.2.
(c) Notwithstanding the foregoing, (i) State Street shall not be
obligated to effect the filing of a registration statement pursuant to
this Section 2.2 during the 120 days following the effective date of a
registration statement pertaining to the underwritten public offering of
PAGE 3
Page 22 of 39
any State Street common stock (as long as State Street has given any
notice required by Section 2.3 hereof and the Holders are able to include
in such registration at least 50% of the Registrable Securities requested
to be so registered), or (ii) if State Street shall furnish to the Holder
requesting a registration statement pursuant to this Section 2.2 a
certificate signed by the Chairman and Chief Executive Officer of State
Street stating that in the good faith judgment of the Board of Directors
of State Street, it would not be in the best interests of State Street and
its stockholders for such registration statement to be filed, State Street
shall have the right to defer such filing, and no other Holder shall be
entitled to request registration hereunder, for a period of not more than
90 days after receipt of the request of such Holder; provided, however,
that State Street may not utilize the right set forth in this subsection
(c)(ii) more than once in any twelve-month period; provided further, upon
receipt of the certificate described in subsection (ii) of this paragraph
(c), such Holder requesting such registration may withdraw its request
within 10 days of receipt of such certificate and, if such request is so
withdrawn will not count as a request pursuant to this Section 2.2. State
Street shall use its reasonable efforts to keep a registration statement
filed pursuant to this Section 2.2 effective for a period of 90 days. If
State Street utilizes the right set forth in this subsection (c)(ii), the
Registration Period shall be extended for the number of days for which any
filing was deferred as specified in the notice; provided, however, that
the Registration Period may not be extended pursuant to this subsection by
a period of longer than ten months.
(d) Each registration requested pursuant to Section 2.2(a) shall be
effected by the filing of a registration statement on Form S-3 (or if such
form is not available, any other form which includes substantially the
same information as would be required to be included in a registration
statement on such form as currently constituted) unless State Street is
not eligible to use such Form under the Securities Act and the regulations
promulgated thereunder, in which case State Street shall be obligated to
effect such registration on Form S-1.
(e) To the extent that a Holder requests registration pursuant to
Section 2.2(a) and State Street, in lieu of effecting a registration
thereof, acquires a portion, but not all, of the Registrable Securities
requested to be so registered directly from the Holder, then such Holder
shall not be deemed to have exercised its right to request registration
pursuant to Section 2.2(a) of this Agreement.
2.3. State Street Registration. Until the expiration of the
Registration Period, if (but without any obligation to do so) State Street
proposes to register, including for this purpose a registration effected
by State Street for stockholders of State Street other than the Holders,
any of its common stock under the Securities Act in connection with the
public offering of common stock solely for cash (other than a registration
on Form S-8 or any successor form relating solely to the sale of
securities to participants in a State Street stock plan, or a registration
on Form S-4 or any successor form relating to an acquisition by State
Street), State Street shall, at such time, promptly give each Holder
PAGE 4
Page 23 of 39
written notice of such registration. Upon the written request of any
Holder given within 20 days after mailing of such notice by State Street,
State Street shall use its reasonable efforts to cause a registration
statement covering all of the Registrable Securities that each such Holder
has requested to be registered pursuant to this Section 2.3 to become
effective under the Securities Act.
In the case of an underwritten registration pursuant to Section 2.3,
if the managing underwriter advises State Street and the Holders in
writing that marketing factors require a limitation of the number of
shares of State Street stock to be underwritten, then State Street shall
include in such registration (A) first, the shares of State Street stock,
being registered on behalf of State Street or on behalf of the
stockholders (other than the Holders) requesting such registration, as the
case may be, (B) second, the Registrable Securities being registered on
behalf of the Holders apportioned on a pro rata basis among the Holders in
accordance with the number of shares of Registrable Securities requested
by the Holders to be included in such registration; and (C) third, any
other securities to be included in such registration.
2.4. Limitations on Registration. Notwithstanding the provisions of
Sections 2.1, 2.2 and 2.3 hereof, in no event shall State Street be
required to register more than 50% of the amount of Registrable Securities
originally issued on the Closing Date prior to the second anniversary of
the Closing Date.
3. Registration Procedures.
3.1. Registration Procedures Pursuant to Section 2. In connection
with State Street's obligations pursuant to Section 2 hereof, State Street
shall:
(a) prepare and file with the Commission the Shelf Registration
Statement or such other registration statements required under Sections
2.2 and 2.3 (For purposes of this Section 3, the Shelf Registration
Statement and registration statements pursuant to Sections 2.2 and 2.3
will be referred to collectively as the "Registration Statements" and
individually as a "Registration Statement") provided that before filing a
registration statement or prospectus or any amendments or supplements
thereto, State Street will furnish to Holders' counsel copies of all such
documents proposed to be filed but only those portions of such documents
relating to the Holders will be subject to the reasonable review of
Holders' counsel; and State Street shall use its reasonable efforts to
cause such Registration Statements to become effective as soon as
practicable thereafter;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statements or statements hereunder and the
prospectus used in connection therewith as may be necessary to maintain
the effectiveness of the Registration Statements (for the applicable
periods specified in Section 2 hereof), and comply with the provisions of
the Securities Act with respect to the disposition of all of the
PAGE 5
Paghe 24 of 39
Registrable Securities during such applicable period in accordance with
the intended methods of disposition by the Holders as set forth in the
Registration Statements;
(c) provide the underwriters of the Registrable Securities to be
included in the Registration Statements hereunder, and counsel for such
underwriters, the reasonable opportunity to participate in the preparation
of the Registration Statements, each prospectus included therein or filed
with the Commission, and each amendment or supplement thereto; and,
subject to the execution of confidentiality agreements in a form or forms
reasonably satisfactory to State Street, make available for inspection by
such persons such financial and other information, books and records of
State Street, and cause the officers, directors and employees of State
Street, and counsel and independent certified public accountants of State
Street, to respond to such inquiries, as shall be reasonably necessary, in
the opinion of respective counsel to any such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act;
(d) promptly notify the Holders and the managing underwriters, if
any, of the Registrable Securities being registered and provide copies of
all related documents (i) when a Registration Statement, the prospectus or
any prospectus supplement or any amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of any request by the Commission for
amendments or supplements to a Registration Statement or the prospectus or
for additional or supplemental information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a
Registration Statement or the written threat or initiation of any
proceedings for that purpose, (iv) of the receipt by State Street of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the written threat
or initiation of any proceeding for that purpose or (v) at any time when a
prospectus is required to be delivered under the Securities Act in
connection with any Registration Statement, of (A) the happening of any
event as a result of which such registration statements, prospectus, any
prospectus supplement, or any document incorporated by reference in any of
the foregoing contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, in the light of the circumstances
under which they are made or (B) that State Street is in possession of
material information that it deems advisable not to disclose in a
registration statement; provided, that if State Street exercises its
rights under Section 3.2 on the basis of an event described in this
subsection 3.1(d)(v)(B) or an event described in 3.1(d)(iii) or 3.1(d)(iv)
occurs and as a result, the registration of the Registrable Securities or
the distribution of such securities is delayed or discontinued for a
period of longer than 45 days from the date of the exercise of the right
under Section 3.2 or the date of occurrence of an event described in
3.1(d)(iii) or 3.1(d)(iv), then State Street shall have been deemed to
have used its right provided for in Section 2.2(c)(ii) as of such date;
PAGE 6
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(e) make reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or any
post-effective amendment thereto or any state filing made in connection
therewith at the earliest practicable date;
(f) furnish to the Holders and each underwriter, if any, of the
securities being sold such number of copies of the Registration Statement,
each such amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in the Registration Statement
and such other documents as the Holders and each underwriter, if any, may
reasonably request in order to facilitate the disposition of the
Registrable Securities being offered;
(g) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in the usual and
customary form for similar transactions, with the managing underwriter or
underwriters of such offering and such other agreements as may be
reasonably requested by the Holders to effect such offering and as are
customary in transactions of this type. Each Holder as a condition to
participating in such underwriting shall also enter into and perform its
obligations under such an agreement as is reasonably satisfactory to the
Holders, including furnishing any opinion of counsel or entering into a
lock-up agreement in the usual or customary form for similar transactions
requested by the managing underwriter or underwriters;
(h) cause all such Registrable Securities to be listed on each
securities exchange on which the State Street Stock is then listed or if
not listed, cause such Registrable Securities to be listed on a national
automated quotation system;
(i) in the underwritten offering obtain from its accountants "cold
comfort letters" dated the effective date of the Registration Statement
and the date of the closing thereunder of the sale of shares addressed to
the underwriters in substance reasonably satisfactory to the managing
underwriter;
(j) obtain from its counsel an opinion addressed to the Holders and
the underwriters reasonably satisfactory to the selling Holders;
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission;
(l) use its best efforts to (i) register or qualify the Registrable
Securities under such other securities laws or Blue Sky laws of such
jurisdictions as the Holders shall reasonably request, (ii) keep such
registrations or qualifications in effect for so long as each of the
Registration Statements remains in effect and (iii) take any and all such
actions as may be reasonably necessary or advisable to enable the Holders
and each underwriter, if any, of Registrable Securities being sold to
consummate the disposition in such jurisdictions of such Registrable
Securities provided, however, that State Street shall not be required for
any such purpose to (A) qualify generally to do business as a foreign
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corporation in any jurisdiction wherein it would not otherwise be required
to qualify or (B) consent to general service of process in any such
jurisdiction; and
(m) cooperate with the Holders and the managing underwriters, if
any, to effect the offering and to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
under the Registration Statements and not bearing any restrictive legends
and such other actions as may be reasonably necessary to complete the
offering.
3.2. Upon the occurrence of any event contemplated by Section
3.1(d)(v)(A), State Street shall, as soon as reasonably practicable, and
in any event within ten business days after such occurrence, prepare and
furnish to each Holder and each underwriter, if any, a reasonable number
of copies of a prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of Registrable Securities, such prospectus
shall not contain an 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, in the light of the circumstances under which they
were made, not misleading. The Holders agree that upon receipt of any
notice from State Street of the happening of any event of the kind
described in Section 3.1(d)(v)(A), the Holders shall forthwith discontinue
the disposition of the Registrable Securities and shall use their
reasonable best efforts to cause any underwriter to discontinue such
disposition until each Holder receives copies of such amended or
supplemented Registration Statement or prospectus, and if so directed by
State Street, the Holders shall deliver to State Street all copies, other
than permanent file copies, then in the Holders' possession of the
prospectus covering such Registrable Securities at the time of receipt of
such notice. The Holders agree that upon receipt of any notice from State
Street of the happening of any circumstance described in Section
3.1(d)(v)(B), the Holders shall forthwith discontinue the disposition of
the Registrable Securities and shall use their reasonable best efforts to
cause any underwriter to discontinue such disposition until State Street
notifies the Holders of the ceasing of such circumstances. If the
disposition of the Registrable Securities is discontinued pursuant to this
Section 3.2 for ten days or less, then the period that State Street shall
be required to keep the Registration Statement effective hereunder shall
be extended by 15 days. If the disposition of the Registrable Securities
is discontinued pursuant to this Section 3.2 for greater than 10 days,
then the period that State Street shall be required to keep the
Registration Statement effective hereunder shall be the greater of 30 days
or the number of days equal to the difference between the date the Holders
receive notice pursuant to this Section 3.2 and the date on which the
Holders and the underwriters, if any, receive sufficient number (as
determined by the Holders) of revised prospectuses or prospectus
supplements to continue the offering, if such offering was discontinued by
reason of the happening of an event described in Section 3.1(d)(v)(A) or
the date on which the Holders receive notice of the ceasing of the
circumstances required by this Section 3.2 if such disposition was
discontinued by reason of the happening of an event described in Section
PAGE 8
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3.1(d)(v)(B). For purposes of this calculation, the number of days shall
include the day the notice is received by the Holders and the day the
Holders and underwriters receive sufficient prospectus or supplements or
notice of the ceasing of circumstances, as the case may be. If following
the discontinuance of a disposition pursuant to this Section 3.2, State
Street shall terminate or otherwise withdraw the Registration Statement,
then, if registration had been requested by a Holder, such Holder shall
not be deemed to have requested such registration for purposes of this
Agreement, and the Registration Period shall be extended by the number of
days between and including the date on which the disposition was
discontinued and the date on which the Holders receive notice of the
ceasing of the circumstances requiring discontinuance of disposition.
State Street may require each Holder and any underwriter to furnish
to State Street such information regarding the Holders and the
distribution of the Registrable Securities as State Street may from time
to time reasonably request in order to comply with the Securities Act.
The Holders agree to notify State Street as promptly as practicable of any
inaccuracy or change in information previously furnished by them to State
Street or of the happening of any event in either case as a result of
which any prospectus contains an untrue statement of a material fact
regarding the Holders or the distribution of such Registrable Securities
or omits to state any material fact regarding the Holders or the
distribution of such Registrable Securities required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and to furnish
promptly to State Street any additional information required to correct or
update any previously furnished information or required so that such
prospectus shall not contain, with respect to such person or the
distribution of such Registrable Securities an 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 in
light of the circumstances then existing.
3.3. Stop Transfer Instructions; Legend. The Holders agree and
understand that the issuance of the Registrable Securities to the Holders
has not been, and, except as contemplated in this Agreement, the sale or
other disposition thereof by the Holders will not be, registered under the
Securities Act or the securities laws of any state and that such shares
may be sold or disposed of only in one or more transactions registered
under the Securities Act and, where applicable, such state laws or as to
which an exemption from the registration requirements of the Securities
Act and, where applicable, such state laws is available. The Holders
acknowledge that, except as expressly set forth in this Agreement, the
Holders have no right to require State Street to cause the registration of
any Registrable Securities. The Holders understand and agree that each
certificate representing any Registrable Securities (each, a
"Certificate") shall be subject to stop transfer instructions and shall
bear the following legend:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
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AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND
SUCH STATE LAWS."
State Street hereby agrees that it will, upon the request of the
Holders, eliminate any stop transfer instructions and any restrictive
legend on any certificates representing the Registrable Securities if (i)
in the opinion of counsel, including in-house counsel with demonstrated
expertise in matters relating to federal securities laws, which counsel
and opinion (in form, scope and substance) shall be reasonably
satisfactory to State Street, the Holders are entitled to sell or dispose
of the Registrable Securities represented by such Certificate without
registration or (ii) such shares are being disposed of by the Holders
under a Registration Statement pursuant to Section 2 herein and in
compliance with the Securities Act and applicable state and securities
laws.
3.4. Expenses of Registration. State Street shall bear and pay all
expenses other than underwriting discounts and commissions relating to
Registrable Securities incurred in connection with each registration,
filing or qualification pursuant to Section 2, including (without
limitation) all registration, filing and qualification fees, printing and
accounting fees, fees and expenses of compliance with securities or blue
sky laws, fees and disbursements of counsel for State Street, but State
Street shall not pay the fees and disbursements of counsel and accountants
for the selling Holders.
4. Indemnification.
4.1. Indemnification by State Street. In connection with any
Registration Statement which State Street may file pursuant to this
Agreement, State Street shall, and it hereby agrees to, indemnify and hold
harmless the Holders and each of their directors and officers, and each
other person, if any, which controls any such person within the meaning of
the Securities Act, and each person who participates as an underwriter in
the offering or sale of Registrable Securities, each affiliate, officer,
director or partner of such underwriter, and each other person, if any,
which controls any such underwriter within the meaning of the Securities
Act, from and against any and all losses, claims, damages or liabilities,
joint or several, and expenses (including without limitation any amounts
paid in any settlement effected with the consent of State Street not to be
unreasonably withheld) to which the Holders, underwriter and/or such
director, officer or controlling person thereof may become subject under
the Securities Act, the common law or otherwise, insofar as such losses,
claims, damages or liabilities (or any actions or proceedings, whether
commenced or threatened and whether civil, criminal or administrative, in
respect thereof) or expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement, or any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto or (ii) any
PAGE 10
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omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement therein not
misleading, in light of the circumstances in which they were made, and
State Street shall reimburse the Holders and such director, officer or
controlling person thereof; such underwriter, such affiliate, officer,
director or partner of such underwriter, and such controlling person for
any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding; provided, however, that State Street shall not be liable to
any such person in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding, whether commenced or
threatened, in respect thereof) or expense arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any registration statement, or prospectus, or amendment
or supplement thereto, in reliance upon and in conformity with written
information furnished to State Street by such person expressly for use
therein; and provided, further, that State Street shall not be liable to
any such person under the indemnity agreement in this Section 4.1 with
respect to any preliminary prospectus to the extent that any such loss,
claim, damage or liability of such person results from the fact that
Registrable Securities were sold to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
prospectus or of the prospectus as then amended or supplemented.
4.2. Indemnification by the Holders. In connection with any
Registration Statement in which the Registrable Securities held by a
Holder are registered, such Holder shall, and such Holder hereby agrees to
indemnify and hold harmless State Street, each director and officer of
State Street and such other person, if any, who controls State Street
within the meaning of the Securities Act, from and against any and all
losses, claims, damages or liabilities, and expenses (including reasonable
fees of counsel and any amounts paid in settlement effected with the
consent of such holder not to be unreasonably withheld) to which State
Street, such director or officer or controlling person may become subject
under the Securities Act, the common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) or expenses arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact in or omission or alleged omission to state a material fact
required to be stated in any registration statement, or any prospectus
contained therein, or any amendment or supplement thereto, or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to State Street by such Holder expressly for use
therein; provided, that the obligation to indemnify will be several and
not joint as to each Holder and will be limited to the net amount of
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement.
4.3. Notices of Claims, Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any
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action or proceeding with respect to which a claim for indemnification may
be made pursuant to this Section 4 or a written threat to commence such
action or proceeding, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice
thereof (including a reasonable explanation of the circumstances in
connection therewith and copies of all writings received relating thereto)
to the latter; provided, however, that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of any obligations under Section 4.1 or 4.2 hereof unless such
failure to provide notice prejudices in any material way the rights of the
indemnifying party to conduct the defense of such action or proceeding.
In case any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after such notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof unless the indemnifying
party has failed to assume the defense of such claim and to employ counsel
reasonably satisfactory to such indemnified person. No indemnifying party
shall consent to entry of any judgment or enter into any settlement with
respect to a claim without the consent of the indemnified party, which
consent shall not be unreasonably withheld, or unless such judgment or
settlement includes as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability in connection with the circumstances out of which the action or
proceeding arose for all persons that may be entitled to or obligated to
provide indemnification or contribution under this Section 4. No
indemnified party shall consent to entry of any judgment or enter into any
settlement of any action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party, which
consent shall not be unreasonably withheld.
4.4. Contribution. If for any reason the indemnification provided
for in Section 4.1 or Section 4.2 is unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, claims,
damages liabilities or expenses specifically covered by the
indemnification provisions set forth in Section 4.1 or Section 4.2, then
the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified party, as
well as any other relevant equitable considerations; provided, however,
that the amount for which a Holder which is an indemnifying party shall be
responsible under this Section 4.4 shall be limited to losses, claims,
damages, liabilities or expenses arising out of or based upon any untrue
statement or alleged untrue statement of any material fact in or omission
or alleged omission to state a material fact required to be stated in any
registration statement or any prospectus contained therein, or any
amendment or supplement thereto, or necessary to make the statements
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therein not misleading only to the extent such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to State Street by such
Holder expressly for use therein; provided, further, that the obligation
to contribute will be individual to each Holder and will be limited to the
net amount of proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence
of this paragraph. 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.
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5. Miscellaneous.
5.1. Non-Assignability of Registration Rights. The rights to cause
State Street, or its successors or assigns to register Registrable
Securities pursuant to this Agreement are reserved solely for the use and
benefit of the Holders and may not be assigned or transferred by the
Holders to any other person other than to an Affiliate of such Holders. A
merger or consolidation of or transfer of all or substantially all the
assets of a Holder (a "Fundamental Transaction") shall not be deemed an
assignment for purposes of this Section 5.1 and the Registrable Securities
held by a Holder immediately prior to the consummation of a Fundamental
Transaction shall remain Registrable Securities subsequent to such
Fundamental Transaction.
5.2. Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally, by
courier or by telecopy, or three days after being deposited in the mail
(registered or certified mail, postage prepaid, return receipt requested)
as follows:
to State Street at:
State Street Boston Corporation
225 Franklin Street
Boston, Massachusetts 02150-2804
Attn: Robert J. Malley, Esq.
Facsimile No.: (617) 654-4006
with a copy to:
Ropes and Gray
One International Place
Boston, Massachusetts 02110-2624
Attn: Mark V. Nuccio, Esq.
Facsimile No.: (617) 951-7050
to Kemper at:
Kemper Financial Services, Inc.
120 S. LaSalle Street
Chicago, Illinois 60603
Attn: David F. Dierenfeldt, Esq.
Facsimile No.: (312) 499-8335
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with a copy to:
Ballard Spahr Andrews & Ingersoll
1735 Market Street
Philadelphia, Pennsylvania 19103-7599
Attn: William H. Rheiner, Esq.
Facsimile No.: (215) 864-8999
to DST at:
DST Systems, Inc.
1055 Broadway, 9th Floor
Kansas City, Missouri 64105
Attn: Robert Canfield, Esq.
Facsimile No.: (816) 435-8630
with a copy to:
Watson, & Marshall, L. C.
1010 Grand Avenue, 5th Floor
Kansas City, Missouri 64106
Attn: Dennis R. Rilinger, Esq.
Facsimile No.: (816) 842-1247
5.3. Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the parties hereto and any underwriters acting hereunder
and their respective successors.
5.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive laws of The
Commonwealth of Massachusetts without giving effect to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
5.5. Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are for convenience of reference only, and do
not constitute a part of and shall not be deemed to limit or affect in any
way any of the provisions of this Agreement.
5.6. Entire Agreement; Amendments. This Agreement and other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
This Agreement may be amended and the observance of any term of this
Agreement may be waived only by a written instrument duly executed by
State Street and each of the Holders.
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5.7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.8. Construction of Terms. The singular may include the plural and
vice versa, unless the context clearly indicates to the contrary. The
words "hereof", "herein" and other similar compounds of the word "here"
shall mean and refer to the entire Agreement and not to any particular
Section.
5.9. Severability of Provisions. If any provision of this Agreement
is found to be unenforceable, the other provisions shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
STATE STREET BOSTON CORPORATION
By________________________________
David A. Spina
Vice Chairman
KEMPER FINANCIAL SERVICES, INC.
By________________________________
David F. Dierenfeldt
Senior Vice President
DST SYSTEMS, INC.
By_______________________________
Kenneth V. Hager
Vice President and
Chief Financial Officer
PAGE 16
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ROPES & GRAY
One International Place
Boston, Massachusetts 02110-2624
(617) 951-7000
Telecopier: (617) 951-7050
May 22, 1995
State Street Boston Corporation
225 Franklin Street
Boston, Massachusetts 02110
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement
on Form S-3 (the "Registration Statement"), filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 2,986,111 shares of Common Stock, $1.00 par
value (the "Shares"), of State Street Boston Corporation, a Massachusetts
corporation (the "Company"). The Shares are to be sold by Kemper Financial
Services, Inc. (the "Selling Stockholder") pursuant to the related prospectus
contained in the Registration Statement.
We have acted as counsel for the Company in connection with the issue and
sale of the Shares by the Company to the Selling Stockholder, and the sale of
the Shares by the Selling Stockholder. For purposes of our opinion, we have
examined and relied upon such documents, records, certificates and other
instruments as we have deemed necessary.
We express no opinion as to the applicability of, compliance with or effect
of federal law or the law of any jurisdiction other than The Commonwealth of
Massachusetts.
Based upon the foregoing, we are of the opinion that, the Shares being sold
by the Selling Stockholder have been duly authorized, validly issued and are
fully paid and nonassessable.
We hereby consent to the filing of this opinion as part of the Registration
Statement and to the use of our name therein and in the related prospectus
under the caption "Legal Matters."
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State Street Boston Corporation -2- May 22, 1995
This opinion is to be used only in connection with the offer and sale of the
Shares while the Registration Statement is in effect.
Very truly yours,
Ropes & Gray
:3051342.01
Page 37 of 39
Independent Accountants' Acknowledgment Letter
The Stockholders and Board of Directors
State Street Boston Corporation
We are aware of the incorporation by reference in the Registration Statement on
Form S-3 dated April 14, 1995 of State Street Boston Corporation for the
registration of 2,986,111 shares of its common stock of our report dated April
14, 1995, related to the unaudited consolidated interim financial statements of
State Street Boston Corporation which are included in its Form 10-Q for the
quarter ended March 31, 1995.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a
part of the registration statement prepared or certified by accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
ERNST & YOUNG LLP
Boston, Massachusetts
May 22, 1995
Page 38 of 39
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement Form S-3 filed on May 22, 1995 and related Prospectus of
State Street Boston Corporation for the registration of 2,986,111 shares of its
common stock and to the incorporation by reference therein of our report dated
January 31, 1995 with respect to the consolidated financial statements of State
Street Boston Corporation included in its current report on Form 8-K dated May
19, 1995, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Boston, Massachusetts
May 19, 1995
Page 39 of 39
