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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
__________________________________
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: June 22, 1995
STATE STREET BOSTON CORPORATION
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(Exact Name of Registrant as specified in its charter)
Massachusetts
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(State or other jurisdiction of incorporation)
0-5108 04-2456637
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Commission File No. (IRS Employer Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
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(Address of principal executive offices) (Zip Code)
(617) 786-3000
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Registrant's telephone number, including area code
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Item 5. Other Events
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A copy of the Underwriting Agreement (the "Underwriting
Agreement") dated as of June 21, 1995 among Registrant,
Goldman, Sachs & Co. and Kemper Financial Services, Inc.
(the "Selling Stockholder") relating to the sale by the
Selling Stockholder of 2,986,111 shares of Registrant's
common stock pursuant to Registrant's Registration
Statement on Form S-3 (No. 33-59505) is filed as an exhibit
hereto.
Item 7. Exhibits
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1. Underwriting Agreement
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: June 22, 1995
STATE STREET BOSTON CORPORATION
By: /s/ Rex S. Schuette
--------------------------------
Rex S. Schuette
Senior Vice President and Comptroller
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EXHIBIT LIST
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Underwriting Agreement dated June 21, 1995
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STATE STREET BOSTON CORPORATION
COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
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UNDERWRITING AGREEMENT
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June 21, 1995
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Kemper Financial Services, Inc. (the "Selling Stockholder"), a
stockholder of State Street Boston Corporation, a Massachusetts corporation
(the "Company"), proposes, subject to the terms and conditions stated herein,
to sell to Goldman, Sachs & Co. (the "Underwriters") an aggregate of 2,986,111
shares (the "Shares") of Common Stock, par value $1.00 per Share ("Stock"), of
the Company.
1. (a) The Company represents and warrants to, and agrees with,
the Selling Stockholder and the Underwriters that:
(i) A registration statement on Form S-3 (File No.
33-59505) in respect of the Shares has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto,
each in the form heretofore delivered to the Underwriters, including
all documents incorporated by reference in the prospectus contained
therein (but excluding exhibits thereto, unless specifically
incorporated therein), have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein
has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), is hereinafter
called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and including
the documents incorporated by reference in the prospectus contained
in the registration statement at the time such part of the
registration statement became effective, each as amended at the time
such part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus contained in the Registration Statement as supplemented
by any prospectus supplements filed with the Commission pursuant to
and in accordance with Rule 424(b) is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed
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to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus
or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in
the Registration Statement);
(ii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the published rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the published rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
the Underwriters expressly for use therein or by the Selling
Stockholder expressly for use in preparation of the answers therein
to Item 7 of Form S-3 and in the last sentence of the "Recent
Developments" section of the Prospectus;
(iii) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the published
rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
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 not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly
for use therein or by the Selling Stockholder expressly for use in
the preparation of the answers therein to Item 7 of Form S-3 and in
the last sentence of the "Recent Developments" section of the
Prospectus;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt (other than issuances
of capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on the
date of the latest balance sheet included or incorporated by
reference in the Prospectus and other than issuances of capital
stock by the Company's subsidiaries to the Company) of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of
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the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(v) Each of the Company and State Street Bank and Trust
Company (the "Bank") has been duly incorporated and is validly
existing as a corporation or trust company in good standing under
the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, other than as disclosed
in writing to the Selling Stockholder and the Underwriters, and has
been duly qualified as a foreign corporation or trust company for
the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(vi) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the Shares) have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform to the description of the Stock contained in the Prospectus;
and all of the issued shares of capital stock of the Bank have been
duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(vii) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or the Bank is a party or by which the Company or the Bank is bound
or to which any of the property or assets of the Company or the Bank
is subject, nor will such action result in any violation of the
provisions of the Articles of Organization, as amended, or the
By-laws of the Company or Certificate of Incorporation or By-laws of
the Bank or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or the Bank or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have
been, or will have been prior to the Time of Delivery, made or
obtained under the Act with respect to the Shares and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters;
(viii) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, under the captions
"Recent Developments", "Dividends", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(ix) Except as set forth or contemplated in the Prospectus,
there are not pending, or, to the Company's knowledge, threatened,
any actions, suits or proceedings to which the Company or any of its
subsidiaries is a party, before or by any court or governmental
agency or body, which, taking into account the likelihood of the
outcome, the damages or other relief sought and other relevant
factors, individually and in the aggregate, would reasonably be
expected to result in any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole;
(x) The Company is a bank holding company registered under
the Bank Holding Company Act of 1956, as amended; and the Company
and the Bank are in substantial compliance with, and
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conduct their respective businesses in substantial conformity with, all
applicable laws and governmental regulations governing bank holding
companies, banks and subsidiaries of bank holding companies,
respectively;
(xi) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
(xii) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes.
(b) The Selling Stockholder represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by the Selling Stockholder of
this Agreement, and for the sale and delivery of the Shares to be sold
by the Selling Stockholder hereunder, have been obtained; and the
Selling Stockholder has full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the Shares to
be sold by the Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by the Selling
Stockholder hereunder and the compliance by the Selling Stockholder
with all of the provisions of this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Selling Stockholder is a party or by which the Selling Stockholder
is bound or to which any of the property or assets of the Selling
Stockholder is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Selling Stockholder or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Selling Stockholder or the property of the Selling Stockholder, except
(other than with respect to the Certificate of Incorporation and
By-laws) for any conflict, breach or violation which, either
individually or in the aggregate, would not impair the Selling
Stockholder's ability to consummate the transaction contemplated hereby
or adversely affect the title to the Shares;
(iii) The Selling Stockholder has, and immediately prior to
the Time of Delivery (as defined in Section 4 hereof) the Selling
Stockholder will have, good and valid title to the Shares to be sold by
the Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares
and payment therefor pursuant hereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims,
will pass to the Underwriters, assuming the Underwriters are bona fide
purchasers;
(iv) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(v) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by the
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the Registration Statement and
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will
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not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(vi) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to the Underwriters
prior to or at the Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(vii) The Shares represented by the certificates held by the
Selling Stockholder are subject to the interests of the Underwriters
hereunder; the obligations of the Selling Stockholder hereunder shall
not be terminated by operation of law, whether by the dissolution of the
Selling Stockholder or by the occurrence of any other event; if the
Selling Stockholder should be dissolved, or any other such event should
occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the
Selling Stockholder in accordance with the terms and conditions of this
Agreement.
2. Subject to the terms and conditions herein set forth, the
Selling Stockholder agrees to sell to the Underwriters, and the Underwriters
agree to purchase from the Selling Stockholder, at a purchase price per share of
$35.15, 2,986,111 Shares.
3. The Underwriters propose to offer the Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by the Underwriters hereunder,
in definitive form, and in such authorized denominations and registered in such
names as the Underwriters may request upon at least forty-eight hours' prior
notice to the Selling Stockholder, shall be delivered by or on behalf of the
Selling Stockholder to the Underwriters, through the facilities of The
Depository Trust Company ("DTC"), for the account of the Underwriters, against
payment by or on behalf of the Underwriters of the purchase price therefor by
certified or official bank check or checks, payable to the order of the Selling
Stockholder, in New York Clearing House (next day) funds. The Selling
Stockholder will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on June 26, 1995 or such other
time and date as the Underwriters and the Selling Stockholder may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of Ropes & Gray, One International Place, Boston, Massachusetts 02110 (the
"Closing Location"), and the Shares will be delivered at the Designated Office,
all at the Time of Delivery. A meeting will be held at the Closing Location at
2:00 p.m., New York City time, on the New York Business Day next preceding the
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with the Underwriters:
(a) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement, or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any
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supplement to the Registration Statement or Prospectus prior to the Time
of Delivery which shall be disapproved by the Underwriters promptly
after reasonable notice thereof; to advise the Underwriters, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Underwriters with copies thereof; to file promptly
all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; and
during such same period to advise the Underwriters, promptly after
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Shares, of the suspension of the qualification of such Shares for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for amending or supplementing of the Registration Statement
or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Shares or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Shares for offering
and sale under the securities laws of such jurisdictions as the
Underwriters may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New
York Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with copies of the Prospectus
in New York City in such quantities as the Underwriters may reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act or the Exchange Act, to notify the Underwriters and upon
the Underwriters' request to file such document and to prepare and
furnish without charge to the Underwriters and to any dealer in
securities as many copies as the Underwriters may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date hereof and
continuing to and including the date 30 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except (i) as provided hereunder and (ii) in connection with any
acquisition made by the Company or any of its subsidiaries, whether by
merger, stock or asset purchase or otherwise, any securities
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of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than pursuant
to employee stock option plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of,
the date of this Agreement), without the Underwriters' prior written
consent.
6. The Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) the cost and charges of any transfer agent or registrar and (v) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. The Selling
Stockholder will pay or cause to be paid all costs and expenses incident to the
performance of the Selling Stockholder's obligations hereunder which are not
otherwise specifically provided for in this Section, including (i) any fees and
expenses of counsel and accountants for the Selling Stockholder and (ii) all
taxes incident to the sale and delivery of the Shares to be sold by the Selling
Stockholder to the Underwriters hereunder. In connection with the preceding
sentence, the Underwriters agree to pay New York State stock transfer tax, and
the Selling Stockholder agrees to reimburse the Underwriters for associated
carrying costs if such tax payment is not rebated on the day of payment and for
any portion of such tax payment not rebated. It is understood, however, that
the Company shall bear, and the Selling Stockholder shall not be required to pay
or to reimburse the Company for, the cost of any other matters not directly
relating to the sale and purchase of the Shares pursuant to this Agreement, and
that, except as provided in this Section, and Sections 8 and 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company and of the Selling Stockholder
herein are, at and as of the Time of Delivery, true and correct, the condition
that each of the Company and the Selling Stockholder shall have performed all of
its respective obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Underwriters' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to the Underwriters such opinion or opinions (a draft
of each such opinion is attached as Annex II(a) hereto), dated the
Time of Delivery, with respect to (i) the Company being duly
incorporated and in good standing under the laws of its state of
organization, (ii) the Shares being duly authorized, validly issued,
fully paid and non-assessable and (iii) this Agreement being duly
authorized, executed and delivered, as well as such other related
matters as the Underwriters may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
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(c) John R. Towers, Esq., General Counsel for the Company,
shall have furnished to the Underwriters his written opinion (a draft of
such opinion is attached as Annex II(b) hereto), dated the Time of
Delivery, in form and substance satisfactory to the Underwriters, to the
effect that:
(i) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(ii) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are not pending, or, to
the Company's knowledge, threatened, any actions, suits or
proceedings to which the Company or any of its subsidiaries is
a party, before or by any court or governmental agency or body,
which, taking into account the likelihood of the outcome, the
damages or other relief sought and other relevant factors,
individually and in the aggregate, would reasonably be expected
to result in any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(iii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iv) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or the Bank
is a party or by which the Company or the Bank is bound or to
which any of the property or assets of the Company or the Bank is
subject, except for any conflict, breach or violation which,
either individually or in the aggregate, would not impair the
Company's ability to consummate the transactions contemplated
hereby, nor will such actions result in any violation of the
provisions of the Articles of Organization, as amended, or By-Laws
of the Company or the Certificate of Incorporation or By-laws of
the Bank or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or the Bank or any of its properties
except that such counsel need not express any opinion concerning
the legal effect of compliance by the Company with the provisions
of Section 8 of this Agreement;
(v) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement,
except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(vi) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the
financial statements, schedules and the financial data therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the published
rules and regulations of the Commission thereunder; and nothing
has come to such counsel's attention which would lead such counsel
to believe that any of such documents, when they became effective
or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or
8
<PAGE> 9
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading.
In rendering such opinion, such counsel shall state that the Selling
Stockholder may rely on such opinion.
(d) Ropes & Gray, counsel for the Company, shall have furnished
to the Underwriters their written opinion (a draft of such opinion is
attached as Annex II(c) hereto), dated the Time of Delivery, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) All of the Shares have been duly and validly
authorized and issued and are fully paid and non-assessable;
(ii) The preferred stock purchase rights of the
holders of the Stock, issued pursuant to the Rights Agreement,
dated as of September 15, 1988, as amended, have been duly and
validly authorized and issued and are fully paid and
non-assessable;
(iii) Each of the Company and the Bank has been duly
incorporated and is validly existing as a corporation or trust
company in good standing under the laws of the jurisdiction of
its incorporation, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(iv) The Company has an authorized capitalization as
set forth in the Prospectus; and all of the issued shares of
capital stock of the Bank have been duly and validly authorized
and issued and are fully paid and non-assessable and (except
for directors' qualifying shares) are owned, to the best of
such counsel's knowledge, directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) The Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the
Company prior to the Time of Delivery (other than the financial
statements, related schedules and the financial data therein,
as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act
and the published rules and regulations thereunder; nothing has
come to their attention which would lead them to believe that,
as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time
of Delivery (other than the financial statements, related
schedules and the financial data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus
or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial
statements, related schedules and the financial data therein,
as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements,
related schedules and the financial data therein, as to which
such counsel need express no opinion) contains an untrue
statement of a material fact or omits to
9
<PAGE> 10
state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
and they do not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference or
described as required.
In rendering such opinion, such counsel shall state that the Selling
Stockholder may rely on such opinion and that Sullivan & Cromwell may rely upon
such opinion as to all matters of Massachusetts law.
(e) David F. Dierenfeldt, Esq., Associate General Counsel of
the Selling Stockholder, shall have furnished to the Underwriters his
written opinion, dated the Time of Delivery, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) This Agreement has been duly executed and delivered
by or on behalf of the Selling Stockholder; and the sale of the
Shares to be sold by the Selling Stockholder hereunder and the
compliance by the Selling Stockholder with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of,
or constitute a default under, any statute or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Selling
Stockholder is a party or by which the Selling Stockholder is
bound or to which any of the property or assets of the Selling
Stockholder is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation
or By-laws of the Selling Stockholder or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property of
the Selling Stockholder, except (other than with respect to the
Certificate of Incorporation and By-laws) for any conflict,
breach or violation which, either individually or in the
aggregate, would not impair the Selling Stockholder's ability
to consummate the transaction contemplated hereby or adversely
affect the title to the Shares;
(ii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions by the Selling Stockholder
contemplated by this Agreement in connection with the Shares to
be sold by the Selling Stockholder hereunder, except such as
may be required under the Act and under state securities or
Blue Sky laws in connection with the purchase and distribution
of such Shares by the Underwriters; and
(iii) Immediately prior to the Time of Delivery, the
Selling Stockholder had good and valid title to the Shares to
be sold at the Time of Delivery by the Selling Stockholder
under this Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and
authority to sell, assign, transfer and deliver the Shares to
be sold by the Selling Stockholder hereunder; and
(iv) Good and valid title to such Shares, free and
clear of all liens, encumbrances, equities or claims, has been
transferred to the Underwriters, assuming the Underwriters are
bona fide purchasers.
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the
Time of Delivery, Ernst & Young LLP shall have furnished to the
Underwriters a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Underwriters, to the
effect set forth in Annex I hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is
10
<PAGE> 11
attached as Annex I(a) hereto and a draft of the form of letter to be
delivered on the effective date of any post-effective amendment to the
Registration Statement and as of the Time of Delivery is attached as
Annex I(b) hereto);
(g) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Underwriters so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares on the terms and in the manner contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities, if the
effect of any such downgrading or public announcement in the judgment of
the Underwriters makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in
the manner contemplated in the Prospectus;
(i) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange (the
"NYSE"); (ii) a suspension or material limitation in trading in the
Company's securities on the NYSE; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York or
Massachusetts State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Underwriters makes
it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares on the terms and in the manner contemplated
in the Prospectus;
(j) The Shares at the Time of Delivery shall have been duly
listed on the NYSE;
(k) The Company and the Selling Stockholder shall have
furnished or caused to be furnished to the Underwriters at the Time of
Delivery certificates of officers of the Company and of the Selling
Stockholder, respectively, satisfactory to the Underwriters as to the
accuracy of the representations and warranties of the Company and the
Selling Stockholder, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling
Stockholder of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as the Underwriters may reasonably request, and the Company
shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (g) of this Section; and
(l) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement.
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<PAGE> 12
8. (a) The Company will indemnify and hold harmless the
Underwriters against any losses, claims, damages or liabilities, joint or
several, to which the Underwriters may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement or the Prospectus,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Underwriters for any legal or other expenses reasonably
incurred by the Underwriters in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
expressly for use therein.
(b) The Selling Stockholder will indemnify and hold harmless the
Underwriters against any losses, claims, damages or liabilities, joint or
several, to which the Underwriters may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement or the Prospectus,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by the
Selling Stockholder expressly for use therein; and will reimburse the
Underwriters for any legal or other expenses reasonably incurred by the
Underwriters in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Selling
Stockholder shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Underwriters expressly for use therein. In no event will the
Selling Stockholder be liable under this Section 8 for any amounts exceeding the
aggregate public offering price of the Shares sold by it pursuant hereto.
(c) The Underwriters will indemnify and hold harmless the Company
and the Selling Stockholder against any losses, claims, damages or liabilities
to which the Company or the Selling Stockholder may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Underwriters expressly for use therein; and will reimburse the
Company and the Selling Stockholder for any legal or other expenses reasonably
incurred by the Company or the Selling
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<PAGE> 13
Stockholder in connection with investigating or defending any such action or
claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then the
indemnifying party under such subsection shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (d) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Stockholder on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Stockholder
bear to the total underwriting discounts and commissions received by the
Underwriters in each case as set forth in the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Stockholder on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholder and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably
13
<PAGE> 14
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection
(e), the Underwriters shall not be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which it has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. In no event will the Selling Stockholder be
liable under this Section 8 for any amounts exceeding the aggregate public
offering price of the Shares sold by it pursuant hereto.
(f) The obligations of the Company and the Selling Stockholder
under this Section 8 shall be in addition to any liability which the Company and
the Selling Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company or
the Selling Stockholder within the meaning of the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholder and the
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Underwriters or any controlling person of the
Underwriters, or the Company, or the Selling Stockholder, or any officer or
director or controlling person of the Company, or any controlling person of the
Selling Stockholder, and shall survive delivery of and payment for the Shares.
10. If this Agreement shall be terminated because of default of
the Underwriters in their obligation to purchase the Shares, neither the Company
nor the Selling Stockholder shall then be under any liability to the
Underwriters except as provided in Sections 6 and 8 hereof; if this Agreement
shall be terminated solely because of the failure on the part of the Company to
perform any of its obligations hereunder, the Company will reimburse the
Underwriters for all out-of-pocket expenses approved in writing by the
Underwriters, including fees and disbursements of counsel, reasonably incurred
by the Underwriters in making preparations for the purchase, sale and delivery
of the Shares, but the Company and the Selling Stockholder shall then be under
no further liability to the Underwriters except as provided in Sections 6 and 8
hereof; if for any other reason the Shares are not delivered by or on behalf of
the Selling Stockholder as provided herein, the Selling Stockholder will
reimburse the Underwriters for all out-of-pocket expenses approved in writing by
the Underwriters, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares, but the Company and the Selling Stockholder shall then
be under no further liability to the Underwriters except as provided in Sections
6 and 8 hereof.
11. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to Goldman, Sachs & Co., 85 Broad Street,
New York, New York 10004, Attention: Registration Department; if to the Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to Kemper Financial Services, Inc., 120 S. LaSalle Street, Chicago, Illinois
60603, Attention: David F. Dierenfeldt, Esq.; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholder and, to
the extent provided in Sections 8 and 9 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Stockholder or
the Underwriters, and their respective heirs, executors, administrators,
successors and assigns, and no other
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<PAGE> 15
person shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
13. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
15
<PAGE> 16
If the foregoing is in accordance with the Underwriters' understanding,
please sign and return to us six counterparts hereof, and upon the acceptance
hereof by the Underwriters, such acceptance hereof shall constitute a binding
agreement among the Underwriters, the Company and the Selling Stockholder.
Very truly yours,
STATE STREET BOSTON CORPORATION
By: . . . . . . . . . . . . . . . . . . . .
Name:
Title:
KEMPER FINANCIAL SERVICES, INC.
By: . . . . . . . . . . . . . . . . . . . .
Name:
Title:
Accepted as of the date hereof
New York, New York
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Goldman, Sachs & Co.)
