-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TfaM2ahPh6aMvxNWPq7/ZssOxzGIe/v60TiqXqdMQLN6fqDRtTP4JiCCTP7O0f6g E8i4tDAtHmNmtytbsYns6g== 0000927016-98-004083.txt : 19981118 0000927016-98-004083.hdr.sgml : 19981118 ACCESSION NUMBER: 0000927016-98-004083 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 8 REFERENCES 429: 333-38135 FILED AS OF DATE: 19981117 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BANKBOSTON CORP CENTRAL INDEX KEY: 0000036672 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 042471221 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-67383 FILM NUMBER: 98753493 BUSINESS ADDRESS: STREET 1: 100 FEDERAL ST CITY: BOSTON STATE: MA ZIP: 02110 BUSINESS PHONE: 6174342200 FORMER COMPANY: FORMER CONFORMED NAME: BANK OF BOSTON CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: FIRST NATIONAL BOSTON CORP DATE OF NAME CHANGE: 19830414 S-3 1 FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 16, 1998 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BANKBOSTON CORPORATION (Exact name of Registrant as specified in its charter) ---------------- MASSACHUSETTS 04-2471221 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 100 FEDERAL STREET, BOSTON, MASSACHUSETTS 02110 (617) 434-2200 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ---------------- GARY A. SPIESS, ESQ. JANICE B. LIVA, ESQ. General Counsel and Clerk Assistant General Counsel and BANKBOSTON CORPORATION Assistant Clerk 100 Federal Street BANKBOSTON CORPORATION Boston, Massachusetts 02110 100 Federal Street (617) 434-2870 Boston, Massachusetts 02110 (617) 434-8630 (Names, addresses, including zip codes, and telephone numbers, including area codes, of agents for service) Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. ---------------- If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the Prospectus is expected to be made pursuant to Rule 434, please check the following box. [X] ---------------- CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------
Proposed Maximum Amount Offering Aggregate Amount of Title of Each Class of to be Price Offering Registration Securities to be Registered Registered(1) Per Unit(1)(2) Price(1)(2) Fee(3) - -------------------------------------------------------------------------------------- Debt Securities(4)(5)... Preferred Stock(6)(10).. Depositary Shares(6)(7)........... Debt Warrants(8)........ $1,215,000,000 100% $1,215,000,000 $337,770 Preferred Stock Warrants(8)............ Common Stock Warrants(8)............ Common Stock, par value $1.00 per share(6)(9)(10)........
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Footnotes on following page) THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Footnotes: (1) Not specified as to each class of securities to be registered pursuant to General Instruction II.D of Form S-3. In no event will the aggregate initial offering price of the Debt Securities, Preferred Stock, Depositary Shares, Debt Warrants, Preferred Stock Warrants, Common Stock and Common Stock Warrants issued under this registration statement exceed $1,215,000,000 or the equivalent thereof in one or more foreign currencies or composite currencies. Securities registered hereby may be sold separately, together or in units with other securities registered hereunder. Pursuant to Rule 429 under the Securities Act of 1933, as amended, the Prospectus included in this Registration Statement is a combined Prospectus and also relates to the Registration Statement on Form S-3 (No. 333-38135) previously filed by the Registrant and declared effective on November 21, 1997. The Prospectus included in this Registration Statement also relates to its remaining unsold securities having an aggregate initial offering price of $285,000,000 which were previously registered by the Registrant under Registration Statement No. 333- 38135. (2) Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(o). The proposed maximum offering price per unit will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder. (3) Pursuant to Rule 429 under the Securities Act of 1933, as amended, the Prospectus included in this Registration Statement also relates to the remaining unsold securities having an aggregate initial offering price of $285,000,000 which were previously registered by the Registrant under Registration Statement No. 333-38135. A registration fee of $86,364 associated with such securities was previously paid at the time of filing of Registration Statement No. 333-38135 (Based on the fee rate in effect at that time of 1/33 of 1%). (4) If any Debt Securities are issued at an original issue discount, then such greater amount as may result in the initial offering prices for Debt Securities and Debt Warrants. (5) In addition to any Debt Securities that may be issued directly under this Registration Statement, there are being registered hereunder an indeterminate amount of Debt Securities as may be issued upon exchange of Preferred Stock, for which no separate consideration will be received. (6) In addition to any Preferred Stock, Depositary Shares or Common Stock that may be issued directly under this Registration Statement, there are being registered hereunder an indeterminate number of Preferred Stock, Depositary Shares or Common Stock as may be issued upon conversion, either at the option of the holder or the Registrant, of Debt Securities, Preferred Stock or Depositary Shares, as the case may be, for which no separate consideration will be received. (7) Such indeterminate number of Depositary Shares to be evidenced by Depositary Receipts issued pursuant to a Deposit Agreement. In the event the Registrant elects to offer to the public fractional interests in shares of the Preferred Stock registered hereunder, Depositary Receipts will be distributed to those persons purchasing such fractional interests and the shares of Preferred Stock will be issued to the Depositary under the Deposit Agreement. (8) Debt Warrants, Preferred Stock Warrants and Common Stock Warrants (collectively, "Securities Warrants") entitling the holder to purchase Debt Securities, Preferred Stock and Common Stock, respectively, may be sold separately or as units with Debt Securities, Preferred Stock or Common Stock. The Securities Warrants will represent rights to purchase only Debt Securities, Preferred Stock and Common Stock covered by this Registration Statement. (9) Includes Preferred Stock Purchase Rights. Prior to the occurrences of certain events, the Rights will not be exercisable or evidenced separately from the Common Stock. (10) Such indeterminate amount of Capital Securities, which may consist of common stock, perpetual preferred stock or other securities acceptable to the Registrant's primary federal banking regulator as may be issued upon conversion, either at the option of the holder or the Registrant, of Debt Securities or Preferred Stock issued under this Registration Statement. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY + +NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN + +OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE + +SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION - DATED NOVEMBER 16, 1998 PROSPECTUS BankBoston BANKBOSTON CORPORATION 100 Federal Street Boston, MA 02110 (617) 434-2200 $1,500,000,000 DEBT SECURITIES PREFERRED STOCK COMMON STOCK WARRANTS ------------ This Prospectus is part of a registration statement that we filed with the Securities and Exchange Commission under a "shelf" registration process. Under that process, we may sell any combination of the Securities described in this Prospectus in one or more offerings up to a total initial offering price of $1,500,000,000. This Prospectus provides you with a general description of the Securities we may offer. Each time we sell Securities registered under this shelf process, we will provide a Prospectus Supplement that will contain the specific terms of that offering. The Prospectus Supplement may also add, update or change information contained in this Prospectus. You should read this Prospectus and any supplement carefully before you invest. ------------ Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these Securities or determined if this Prospectus is truthful or complete. Any representation to the contrary is a criminal offense. ------------ The Securities constitute our unsecured obligations and are not savings accounts, deposits or other obligations of any of our bank or nonbank subsidiaries. The Securities are not insured by the Federal Deposit Insurance Corporation, the Bank Insurance Fund or any other governmental agency. The date of this Prospectus is , 1998. TABLE OF CONTENTS
SECTION PAGE ------- ---- BankBoston Corporation................................................... 3 Where You Can Find More Information...................................... 3 Incorporation of Information We File with the SEC........................ 3 Consolidated Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividend Requirements....................... 4 Supervision and Regulation............................................... 4 Use of Proceeds.......................................................... 5 Description of Debt Securities........................................... 6 Description of Preferred Stock........................................... 16 Description of Common Stock.............................................. 21 Description of Capital Securities........................................ 23 Description of Securities Warrants....................................... 23 Plan of Distribution..................................................... 25 Legal Opinions........................................................... 26 Experts.................................................................. 26
2 BANKBOSTON CORPORATION BankBoston Corporation (the "Company", "we", "us" and "our") is a bank holding company with both national and international operations. We offer a full range of banking services to consumers, small businesses and corporate customers in southern New England, deliver sophisticated financial solutions to mid-size and large corporations nationally and internationally, and provide full-service banking in leading Latin American markets. Our principal subsidiary is BankBoston, N.A. (the "Bank"), a national banking association with its headquarters in Massachusetts. The Bank maintains branches in Massachusetts, Connecticut, Rhode Island and New Hampshire and operates a network of offices across the United States and in 20 countries in Latin America, Asia and Europe. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission ("SEC"). You may read and copy any reports, statements or other information that we file at the SEC's public reference rooms in Washington, D.C., New York, New York and Chicago, Illinois. For more information about the SEC's public reference rooms and their copy charges, please call the SEC at 1-800-SEC-0330. Our filings with the SEC are also available to the public from the website maintained by the SEC at http://www.sec.gov. Our securities are listed on the New York Stock Exchange and the Boston Stock Exchange, and such reports, proxy statements and other information concerning us also may be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, and the Boston Stock Exchange Incorporated, One Boston Place, Boston, Massachusetts 02108. We have filed a registration statement on Form S-3 with the SEC covering the Securities described in this Prospectus. For further information regarding the Company and the Securities, you should refer to our registration statement and its exhibits. This Prospectus summarizes material provisions of contracts and other documents to which we refer you. Since the Prospectus may not contain all the information that you may find important, you should review the full text of these documents. We have included copies of these documents as exhibits to our registration statement. INCORPORATION OF INFORMATION WE FILE WITH THE SEC The SEC allows us to "incorporate by reference" the information that we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this Prospectus, and later information filed with the SEC will update and supersede this information. We are incorporating by reference the documents listed below and any future filings that we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), until this offering is completed: 1. Annual Report on Form 10-K for our fiscal year ended December 31, 1997; 2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998 and September 30, 1998; 3. Current Reports on Form 8-K dated January 15, 1998, April 16, 1998, May 29, 1998, July 16, 1998, August 31, 1998 and October 15, 1998; and 4. Description of our Common Stock and Preferred Stock Purchase Rights contained in our registration statements filed under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. 3 You may request a copy of these filings at no cost by writing or telephoning us at this address and telephone number: BankBoston Corporation Investor Relations P.O. Box 2016, MA BOS 01-20-02 Boston, Massachusetts 02106-2016 (617) 434-7858. You should rely only on the information provided in this Prospectus or in any later Prospectus Supplement or incorporated by reference in either document. We have not authorized anyone to provide you with different or additional information. We are not making an offer to sell securities in any state or country where the offer is not permitted. You should not assume that the information in this Prospectus or any later Prospectus Supplement is accurate as of any date other than the date on the front of the document. CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS Our ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividend requirements for each of the periods indicated are as follows :
NINE MONTHS ENDED SEPTEMBER 30, YEARS ENDED DECEMBER 31, -------------- ---------------------------- 1998 1997 1997 1996 1995 1994 1993 ------ ------ ---- ---- ---- ---- ---- Earnings to Fixed Charges: Excluding Interest on Deposits..................... 2.03x 2.33x 2.35x 2.24x 2.08x 1.90x 2.44x Including Interest on Deposits..................... 1.41 1.53 1.53 1.44 1.42 1.41 1.38 Earnings to Combined Fixed Charges and Preferred Stock Dividend Requirements: Excluding Interest on Deposits..................... 2.00 2.20 2.24 2.09 1.96 1.79 2.13 Including Interest on Deposits..................... 1.40 1.49 1.50 1.40 1.38 1.37 1.33
For purposes of computing the above ratios, we have included in "earnings" our consolidated net income (without taking into account extraordinary items and the cumulative effect of changes in accounting principles) plus applicable income taxes and fixed charges. To compute fixed charges, excluding interest on deposits, we have included interest expense (other than on deposits) and the portion of rent expense that we consider approximates interest, minus sublease rental income. To compute fixed charges, including interest on deposits, we have included all interest expense and the portion of rent expense that we consider approximates interest, minus sublease rental income. We calculated the pretax earnings required for preferred stock dividends by using income tax rates for the applicable year. SUPERVISION AND REGULATION We are registered with the Board of Governors of the Federal Reserve System, which has the authority to regulate bank holding companies. The Board of Governors expects us to act as a source of financial strength to our subsidiary banks and to commit resources to support such subsidiary banks in circumstances where we might not otherwise do so. The Federal Reserve Bank of Boston also supervises and regulates the Company's activities. The Bank is organized as a national banking association. The Office of the Comptroller of the Currency and the FDIC are the regulatory authorities for the Bank. Our most recent Annual Report on Form 10-K sets forth a summary of certain of these regulations, which you may consult for further information. 4 Federal and state laws can change in unpredictable ways. These changes can have significant effects on the way in which banks may conduct business. Recent laws have substantially increased the level of competition among commercial banks, thrift institutions and non-banking institutions, such as insurance companies, brokerage firms, mutual funds, investment banks and major retailers. Two statutes have affected the banking industry by broadening the regulatory powers of the federal banking agencies. They are the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") and the Federal Deposit Insurance Company Improvement Act of 1991. Under FIRREA, the FDIC can hold an FDIC-insured bank liable for any loss incurred or reasonably expected to be incurred by the FDIC in connection with certain events relating to that bank. These events include (i) a default by a commonly controlled FDIC- insured bank or (ii) the FDIC providing assistance to a commonly controlled FDIC-insured bank in danger of defaulting. "Default" generally means the appointment of a conservator or receiver and "in danger of defaulting" generally means the existence of certain conditions indicating that a "default" is likely to occur if the regulators do not assist the bank. FIRREA broadened the enforcement powers of the federal banking agencies by giving them the power to impose fines and penalties on all financial institutions. Under FIRREA, if a bank fails to meet capital guidelines, the FDIC can take a variety of regulatory actions against that bank, including terminating deposit insurance. USE OF PROCEEDS We intend to use the net proceeds from the sale of the Securities described in this Prospectus for our general corporate purposes. General corporate purposes include the following: investing in our subsidiaries, making advances to our subsidiaries, financing future acquisitions of financial institutions and other assets, and redeeming certain of our other outstanding Securities. The precise amounts of proceeds that we will use for various corporate purposes and the timing of our use of the proceeds will depend upon our funding requirements and what other funds are available to us and to our subsidiaries at that particular time. 5 DESCRIPTION OF DEBT SECURITIES GENERAL The Debt Securities will be our direct, unsecured general obligations. The Debt Securities will be either our Senior Securities or our Subordinated Securities, the provisions of which we have summarized in the Sections that follow. We will describe the particular terms of any Debt Securities in the Prospectus Supplement relating to those Debt Securities. We will issue the Senior Securities under an indenture that we entered into as of June 15, 1992, with Norwest Bank Minnesota, National Association as Trustee (the "Senior Indenture"). We will issue the Subordinated Securities under an indenture that we entered into as of June 15, 1992, with Norwest as Trustee. We amended the indenture for the Subordinated Securities in the First Supplemental Indenture dated as of June 24, 1993 (the indenture for the Subordinated Securities, as amended, is the "Subordinated Indenture"). Under each of these Indentures, Norwest will act as the Trustee for the security holders. We have filed copies of the Indentures as exhibits to the Registration Statement. For your convenience we have included references to the specific sections of the Indentures in the descriptions below. The following summary of selected provisions of the Indentures is not complete, however, and you should read the Indentures for provisions that may be important to you. Capitalized terms used in this Prospectus have the meanings specified in the Indentures. We are a holding company and conduct most of our operations through our subsidiaries. Our rights and the rights of our creditors, including you, to the assets of any subsidiary of ours upon that subsidiary's liquidation or reorganization or otherwise would be subject to the prior claims of that subsidiary's creditors, except to the extent that we may be a creditor with recognized claims against such subsidiary. Our subsidiaries' creditors would include trade creditors, debt holders, secured creditors and taxing authorities. Neither the Debt Securities nor the Indentures restrict us or any of our subsidiaries from incurring indebtedness. Neither of the Indentures limits the amount of Debt Securities that we may issue. Each Indenture provides that Debt Securities may be issued up to the principal amount that we may separately authorize from time to time. Each also provides that the Debt Securities may be denominated in any currency or currency unit designated by us. Unless otherwise set forth in the Prospectus Supplement related to that offering, neither the Indentures nor the Debt Securities will contain any provisions to afford holders of any Debt Securities protection in the event of a takeover, recapitalization or similar restructuring of our business. The Senior Securities will rank equally with all of our other unsecured and unsubordinated debt. The Subordinated Securities will rank junior to all of our Senior Indebtedness as we describe below under "Subordination." We may issue Debt Securities in one or more separate series of Senior or Subordinated Securities. We will include specific terms relating to a particular series of Debt Securities in a Prospectus Supplement relating to the offering. The terms we will describe in the Prospectus Supplement will include some or all of the following: (1) The distinct title and type of the Debt Securities; (2) The total principal amount or initial offering price of the Debt Securities; (3) The date or dates when the principal of the Debt Securities will be payable; (4) The rate at which the Debt Securities will bear interest; (5) The date from which interest on the Debt Securities will accrue; (6) The dates when interest on the Debt Securities will be payable and the regular record date for such interest payment dates; (7) The place where (i) the principal, premium, if any, and interest on the Debt Securities will be paid, (ii) registered Debt Securities may be surrendered for registration of transfer, and (iii) Debt Securities may be surrendered for exchange; 6 (8) Any sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the Debt Securities; (9) The terms and conditions upon which we will have the option to redeem the Debt Securities; (10) The denominations in which any registered Debt Securities will be issuable (if other than denominations of $1,000 or integral multiples) and the denominations in which any bearer Debt Securities will be issuable (if other than a denomination of $5,000); (11) The identity of each Security Registrar, Paying Agent and Exchange Rate Agent (if other than the Trustee); (12) The portion of the principal amount of Debt Securities that will be payable upon acceleration of the Maturity of the Debt Securities; (13) The currency used to pay principal, premium and interest on such Debt Securities (if other than U.S. Dollars) and whether you or we may elect to have principal, premium and interest paid in a currency other than the currency in which the Debt Securities are denominated; (14) Any index, formula or other method used to determine the amount of principal, premium or interest on the Debt Securities; (15) Any terms upon which you may convert Subordinated Securities into, or exchange Subordinated Securities for, Capital Securities; (16) Whether such Debt Securities are Senior Securities or Subordinated Securities; (17) Whether provisions relating to defeasance and covenant defeasance will be applicable to such series of Debt Securities; (18) Any provisions granting special rights to you when a specified event occurs; (19) Any changes to the Events of Default, Defaults (in the case of Subordinated Securities) or to our covenants; (20) Whether the Debt Securities are issuable as registered Debt Securities or bearer Debt Securities, whether there are any restrictions relating to the form in which they are issued and whether bearer and registered Debt Securities may be exchanged for each other; (21) To whom interest will be payable (i) if other than the registered Holder (for registered Debt Securities), (ii) if other than upon presentation and surrender of the related coupons (for bearer Debt Securities), or (iii) if other than as specified in the Indentures (for global Debt Securities); (22) The time, manner and place for Debt Securities to be authenticated and delivered if they are to be issued upon the exercise of warrants; (23) Whether we will pay Additional Amounts regarding any tax, assessment or government charge to any holder of Debt Securities who is not a United States person and, if so, whether we will have the option to redeem such Debt Securities instead of paying such Additional Amounts; and (24) Any other terms of the Debt Securities. We may issue Debt Securities as Original Issue Discount Debt Securities to be sold at a substantial discount below their principal amount. If we issue Original Issue Discount Debt Securities, then the special federal income tax rules that apply will be described in the Prospectus Supplement for those Debt Securities. We may also issue Debt Securities upon the exercise of Debt Warrants. See "Description of Securities Warrants." We also have the ability under the Indentures to "reopen" a previously issued series of Debt Securities and issue additional Debt Securities of such series or establish additional terms of such series. We are also permitted to issue Debt Securities with the same terms as previously issued Debt Securities. 7 REGISTRATION AND TRANSFER We plan to issue each series of Debt Securities only as registered securities. However, we may issue a series of Debt Securities as bearer securities, or a combination of both registered securities and bearer securities. If we issue Debt Securities as bearer securities they will have interest coupons attached unless we elect to issue them as zero coupon securities. (Section 201, 301.) If we issue bearer securities, we will describe the U.S. federal income tax consequences and any other applicable considerations, procedures and limitations in the Prospectus Supplement for that offering. You may present registered securities for transfer or exchange for other Debt Securities of the same series at the office of our agent, Securities Transfer and Reporting Services, Inc., in New York City, or the Bank's principal office in Boston. The registered securities must be duly endorsed or accompanied by a written instrument of transfer, if the Company or the Security Registrar so requires. The agent will not impose a service charge on you for the transfer or exchange. We may, however, require that you pay any applicable tax or other governmental charge. We will describe any procedures for the exchange of bearer securities for other Debt Securities of the same series in the Prospectus Supplement for that offering. Generally, we will not allow you to exchange registered securities for bearer securities. (Sections 301, 305, 1002.) In general, we will issue registered securities without coupons and in denominations of $1,000 (or integral multiples) and bearer securities in denominations of $5,000. We may also issue both registered and bearer securities in global form and we may issue global securities in any denominations. (Section 301, 302.) GLOBAL SECURITIES We may issue Debt Securities of a series in whole or in part in the form of one or more global securities which we will deposit with a depositary. We will identify the depositary in the Prospectus Supplement related to that offering. We may issue global securities in either registered or bearer form and in either temporary or permanent form. Unless and until it is exchanged in whole or part for the individual Debt Securities it represents, a global security may not be transferred except as a whole by the depositary or its nominee. The depositary and its nominee for a global security may only transfer the global security between themselves or their successors. (Sections 203, 303, 304.) If we issue bearer securities in the form of global securities, we will describe in the Prospectus Supplement for that offering the specific terms of the depository arrangement. We will also describe in that Prospectus Supplement any limitations and restrictions, including special U.S. federal income tax consequences, relating to those securities. We will make principal, premium and interest payments on global securities to the depositary or its nominee designated as the registered owner for such global securities. The depositary or its nominee will be responsible for making payments to you and other holders of interests in the global securities. We and the paying agents will treat the persons in whose names the global securities are registered as the owners of such global securities for all purposes. Neither we nor the paying agents have any direct responsibility or liability for the payment of principal, premium or interest to owners of beneficial interests in the global securities. PAYMENT AND PAYING AGENTS In general, our agent will make payment of principal, premium, if any, and interest on registered securities at its office in New York City or at the Bank's principal office in Boston. We also have the option of paying interest by mailing a check to you. If we make the payment by check, we will mail it to you at your address as it appears in our records. (Sections 301, 307, 1002.) Subject to applicable laws, we will pay principal, premium, if any, and interest on bearer securities at an office outside the United States that we will specify in the Prospectus Supplement related to that offering. We may also designate from time to time another office for such payments or transfer the payments to an 8 account maintained by you with a bank located outside the United States. To receive payment of interest on bearer securities you must surrender the coupon for that interest payment date. We will not make any payments with respect to bearer securities at any of our offices or agencies in the United States nor will we mail payment checks to any address in the United States or transfer payment to an account maintained with a bank located in the United States. (Sections 301, 307.) RESTRICTION ON CERTAIN DISTRIBUTIONS We have agreed under the terms of the Senior Indenture to limit certain payments and distributions while the Senior Securities are outstanding. In particular, we have agreed that we will not make any payment or other distribution in shares of capital stock of the Bank or its successor. We are bound by this limitation unless the Bank or it's successor unconditionally guarantees the payment when due of principal, premium, if any, and interest on the Senior Securities issued pursuant to the Senior Indenture. (Section 1008.) RESTRICTIONS ON LIENS Under the terms of the Senior Indenture, we are also prohibited from, directly or indirectly, creating, assuming or incurring any Lien upon any shares of capital stock of the Bank or any shares of capital stock of a Subsidiary which owns shares of capital stock of the Bank. We are subject to this limitation except for Liens for (1) taxes, (2) assessments, (3) judgments or (4) other governmental charges or levies. The exceptions only apply if the amount to which the Lien relates is (1) not yet due, (2) payable without penalty, or (3) being contested by us in good faith and we have set aside adequate reserves on our books for that amount. (Section 1009.) CONSOLIDATION, MERGER AND SALE OF ASSETS We may, without the consent of the holders of any Outstanding Debt Securities, consolidate with or merge into any other corporation or convey, transfer or lease our properties and assets substantially as an entirety. However, we may only do this if: (1) our successor will be a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia; (2) our successor expressly assumes our obligation to pay the principal, premium, if any, and interest on the Outstanding Debt Securities and to perform the indenture covenants; (3) after giving effect to the transaction, no Event of Default under the Senior Indenture (or Default under the Subordinated Indenture), and no event which after notice or lapse of time or both would become an Event of Default (or Default), has occurred and is continuing; and (4) certain other conditions described in the Indentures are satisfied. (Section 801.) MODIFICATION AND WAIVER We and the Trustee may modify or amend either Indenture with the consent of the holders of 66 2/3% of the principal amount of the Outstanding Debt Securities of each series that will be affected by the modification or amendment. However, we cannot make any of the following modifications or amendments without the consent of the holder of each Outstanding Debt Security affected: (1) change the Stated Maturity of the principal or any installment of interest; (2) reduce the principal amount, interest rate, or any premium payable, or (in the case of Subordinated Securities) exchange any Debt Securities; (3) change our obligations to pay Additional Amounts required; (4) reduce the amount of principal of any Original Issue Discount Security that is due and payable upon acceleration of Maturity or provable in bankruptcy; 9 (5) adversely affect any holder's optional right of repayment; (6) change the place, currency, or (in the case of Subordinated Securities) class of Capital Securities for payments; (7) impair the right to institute suit for the enforcement of any payments on or after the date on which the payments are due; (8) adversely affect the right to convert any convertible security (in the case of Subordinated Securities); (9) reduce the percentage of the principal amount of Outstanding Debt Securities for which the holders' consent is required for modifications, amendments, or waivers, or reduce the requirements for quorum or voting by the holders; or (10) modify certain provisions unless it is to increase the percentage required to consent to amendments or modifications or to give waivers, or to provide that other provisions cannot be modified or waived without the consent of the holder of each Outstanding Debt Security affected. (Section 902.) The holders of 66 2/3% in principal amount of the Outstanding Debt Securities of each series may waive (on behalf of all holders of that series) compliance by us with certain terms or provisions of the applicable Indenture. (Section 1011.) The holders of a majority in principal amount of the Outstanding Debt Securities of any series also may waive (on behalf of all holders of that series) most past defaults by us under the applicable Indenture. However, the consent of the holder of each affected Debt Security is required to waive any default by us with respect to payment or a covenant or provision which cannot be modified or amended without the consent of the holder of each affected Debt Security. (Section 513.) To determine if holders having the requisite principal amount of the Outstanding Debt Securities have given any consent, waiver, notice or demand or otherwise taken any action, or whether quorum requirements have been satisfied, we will calculate the principal amount of the following types of Debt Securities in the manner described below: (1) For an Original Issue Discount Security: the amount of principal that would be due and payable as of the date of the determination if its maturity had been accelerated; (2) For a Debt Security in a Foreign Currency: the dollar equivalent of the principal amount of such security determined as of the date of its original issuance, (or for an Original Issue Discount Security, the U.S. Dollar equivalent of the amount determined above, determined as of the date of its original issuance); and (3) For an Indexed Debt Security: the face amount of principal of the Indexed Debt Security at its original issuance. (Section 101.) DEFEASANCE AND COVENANT DEFEASANCE Under the Indentures, if we take certain steps (referred to as defeasance or covenant defeasance), we can be relieved of a number of our obligations with respect to the Debt Securities of or within a series. To obtain that relief, we would be required to do the following: (1) deposit irrevocably with the Trustee as trust funds an amount in cash, Capital Securities (in the case of certain Subordinated Securities) or government obligations or in combination, that provides sufficient money to pay the principal, premium, if any, and interest on such Debt Securities on the applicable payment due dates, and any applicable sinking fund or similar payments; (2) deliver an opinion of counsel that the holders of such Debt Securities will not have any U.S. federal income tax consequences as a result of our deposit with the Trustee and termination of our obligations; and (3) satisfy certain other conditions specified in the Indentures. 10 Despite the above steps, we cannot be relieved of the following obligations: (1) to pay any Additional Amounts required under the Indentures; (2) to register the transfer or exchange of Debt Securities and any related coupons; (3) to replace temporary or mutilated, destroyed, lost or stolen Debt Securities and any related coupons; (4) to maintain an office or agency in respect of the Debt Securities and any related coupons; and (5) to hold money for payment in trust. (Senior Indenture, Article 14; Subordinated Indenture Article 15) In the event that we take the steps noted above to be relieved of certain obligations, the money, Capital Securities and government obligations that we place on deposit with the Trustee will be sufficient to pay amounts due on the Debt Securities to be defeased at their Stated Maturity. If such Debt Securities are subsequently declared due and payable prior to their Stated Maturity because of the occurrence of an Event of Default, the money, Capital Securities and government obligations may not be sufficient to pay amounts due at the time of acceleration. However, if the Event of Default relates to a covenant from which we have not been relieved, we would remain liable to make payment of the remaining amount due at the time of acceleration. We will describe any other provisions permitting defeasance or covenant defeasance with respect to any series of Debt Securities in the Prospectus Supplement for that offering. When we refer to "government obligations" we mean securities that are (1) direct obligations of the government that issued the currency in which the security is payable or (2) obligations of an agency or instrumentality of that government, the payment of which is unconditionally guaranteed by such government. In either case, these securities are full faith and credit obligations of such government and are not callable or redeemable at the option of the issuer, and also include a depositary receipt issued by a bank or trust company as custodian with respect to any such government obligation. (Section 101.) REGARDING THE TRUSTEE The Trustee under the Indentures, Norwest, has its principal corporate trust office at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479. The Trustee maintains banking relationships with us and our subsidiaries and has acted as trustee in connection with prior offerings of our securities. SENIOR SECURITIES The Senior Securities will be our direct, unsecured obligations. The Senior Securities will constitute Senior Indebtedness (as defined below) and will rank equally with our other Senior Indebtedness. EVENTS OF DEFAULT The following will be Events of Default under the Senior Indenture with respect to Senior Securities of any series: (1) our failure to pay principal or premium, if any, on any Senior Security of that series at Maturity; (2) our failure to pay, continued for 30 days, any interest on any Senior Security of that series when due and payable; (3) our failure to deposit any sinking fund payment in respect of any Senior Security of that series when due; (4) our failure to perform any of our covenants or warranties in the Senior Indenture (but not if such covenant or warranty is solely for the benefit of another series of Senior Securities) continued for 60 days after we receive written notice provided for in the Senior Indenture; 11 (5) our default or a default by the Bank under certain indebtedness for money borrowed in an aggregate principal amount that exceeds $3,000,000 (including a default with respect to Senior Securities of another series), provided that: (i) such default results in the acceleration of such indebtedness, and (ii) such acceleration is not rescinded or annulled, or the indebtedness discharged by us, within ten days after we receive written notice provided for in the Senior Indenture; (6) certain events relating to bankruptcy, insolvency or reorganization of us or the Bank; and (7) any other Event of Default with respect to Senior Securities of that series. (Senior Indenture, Section 501.) If an Event of Default with respect to any series of Senior Securities occurs and continues, the Trustee or the holders of at least 25% in aggregate principal amount of the Outstanding Senior Securities of that series may declare the principal amount of all the Senior Securities of that series to be due and payable immediately. If the Senior Securities of that series are Original Issue Discount Senior Securities or Indexed Securities, then the terms of that series will specify the portion of the principal amount of such Senior Securities that may declare an acceleration and the portion of the principal amount that will be due and payable upon such declaration. To make a declaration, the Trustee must deliver a written notice to us (and if the declaration is made by holders, they must deliver such written notice to the Trustee as well as to us). Upon any declaration, the principal amount (or specified amount) will become immediately due and payable. At any time after the Trustee or the holders have made a declaration of acceleration with respect to Senior Securities of any series, but before the Trustee has obtained a judgment or decree for payment of the money due, the holders of a majority in principal amount of Outstanding Senior Securities of that series may, under certain circumstances, rescind and annul such declaration and its consequences. This rescission by the holders could occur only if we have made or provided for all payments due (other than those due as a result of acceleration) on the Senior Securities of that series and (i) all Events of Default with respect to Senior Securities of that series have been cured by us or (ii) if permitted, waived by the holders of at least a majority in aggregate principal amount of the Outstanding Senior Securities of that series. (Senior Indenture, Section 502.) Other than its duty to act with the required standard of care upon the occurrence of a default, the Trustee is not obligated to exercise any of its rights or powers under the Senior Indenture at the request, order or direction of any holders unless the holders offer the Trustee reasonable indemnity or security against the costs, expenses and liabilities which may be incurred. (Senior Indenture, Section 602.) Subject to certain conditions, the holders of a majority in principal amount of any series of Senior Securities may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or for exercising any power conferred upon the Trustee, for that series. (Senior Indenture, Section 512.) Once a year, we are required to deliver an officers' certificate to the Trustee. In this certificate we certify as to our performance and observance of certain terms, provisions and conditions in the Senior Indenture and as to the absence of default. (Senior Indenture, Section 1010.) SUBORDINATED SECURITIES The Subordinated Securities will be our direct, unsecured obligations. Our obligations pursuant to the Subordinated Securities will be subordinate in right of payment to all Senior Indebtedness as defined below under "Subordination." Unless otherwise indicated in the applicable Prospectus Supplement, the Stated Maturity of the Subordinated Securities will be subject to acceleration only in the case of certain events of bankruptcy, insolvency or reorganization of us or the receivership of the Bank. See "Events of Default; Defaults" below. SUBORDINATION Our obligation to make any payment on account of the principal of or premium, if any, and interest, if any, on the Subordinated Securities will be subordinate and junior in right of payment to our obligations to the 12 holders of our Senior Indebtedness. (Subordinated Indenture, Section 1301.) "Senior Indebtedness" is defined to include: (a) any obligation of ours, or any obligation of another guaranteed by us, for the repayment of borrowed money, (b) any deferred obligations for the payment of the purchase price of property or assets, (c) all of our obligations associated with derivative products such as interest rate and foreign exchange rate contracts, commodity contracts and similar arrangements, in each case whether existing currently or subsequently created, assumed or incurred, and (d) any deferrals, renewals or extensions of such Senior Indebtedness. (Subordinated Indenture, Section 101.) Senior Indebtedness does not include: (i) our indebtedness described in clauses (a) and (b) above which specifically by its terms ranks equally with and not prior to the Subordinated Securities, and (ii) our indebtedness described in clauses (a) and (b) above which specifically by its terms ranks junior to and not equally with or prior to the Subordinated Securities. Indebtedness that ranks equally with the Subordinated Securities includes our following obligations: (1) Floating Rate Subordinated Notes Due 2001, issued pursuant to a Fiscal and Paying Agency Agreement, dated as of February 10, 1986, between us and Bankers Trust Company, as fiscal agent; (2) 6 7/8% Subordinated Notes Due 2003, issued under the Subordinated Indenture on June 30, 1993; (3) 6 5/8% Subordinated Notes Due 2005, issued under the Subordinated Indenture on November 22, 1993; and (4) 6 5/8% Subordinated Notes Due 2004, issued under the Subordinated Indenture on January 12, 1994. In the event of any bankruptcy, insolvency, reorganization or other similar proceeding relating to us, whether voluntary or involuntary, all of our obligations to holders of Senior Indebtedness (other than our obligations associated with derivative products) shall be entitled to be paid in full before any payment shall be made on account of the principal (including principal to be paid by delivery of Capital Securities) of, or premium, if any, or interest, if any, on the Subordinated Securities of any series. In the event of any such bankruptcy, insolvency, reorganization or other similar proceeding, holders of the Subordinated Securities of any series, together with holders of indebtedness ranking equally with the Subordinated Securities, shall be entitled, ratably, to be paid amounts that are due to them, but only from assets remaining after we pay in full the amounts that we owe on our Senior Indebtedness (other than our obligations associated with derivative products). We will make these payments before we make any payment or other distribution on account of any capital stock or any indebtedness that ranks junior to the Subordinated Securities. However, if we have paid in full all of the sums that we owe with respect to our Senior Indebtedness (other than our obligations associated with derivative products) and creditors in respect of our obligations associated with such derivative products have not received payment in full of amounts due to them, then the available remaining assets shall be applied to payment in full of those obligations before any payment is made on the Subordinated Securities. (Subordinated Indenture, Section 1301.) In the event that we are in default on any of our Senior Indebtedness (other than obligations associated with derivative products) or in the event that any such default would occur as a result of certain payments, then we may not make any payments on the Subordinated Securities or effect any exchange or retirement of any of the Subordinated Securities unless and until such default has been cured or waived or otherwise ceases to exist. 13 (Subordinated Indenture, Section 1303.) Because of these subordination provisions, if we become insolvent, then holders of the Subordinated Securities may recover less, ratably, than our other creditors, including holders of Senior Securities. EVENTS OF DEFAULT; DEFAULTS The following will be Events of Default under the Subordinated Indenture with respect to Subordinated Securities of any series: (1) certain events in bankruptcy, insolvency or reorganization of us or the receivership of the Bank; and (2) any other Event of Default provided with respect to Subordinated Securities of that series. (Subordinated Indenture, Section 501.) If an Event of Default with respect to any series of Subordinated Securities occurs and continues, the Trustee or the holders of at least 25% in aggregate principal amount of the Outstanding Subordinated Securities of that series may declare the principal amount of all the Subordinated Securities of that series to be due and payable immediately. If the Subordinated Securities of that series are Original Issue Discount Subordinated Securities or Indexed Securities, then the terms of that series will specify the portion of the principal amount that will be due and payable upon such declaration. To make such a declaration, the Trustee must deliver a written notice to us (and if the declaration is made by holders, they must deliver such written notice to the Trustee as well as to us). Upon any declaration, the principal amount (or specified amount) will become immediately due and payable. In the event of our bankruptcy or insolvency, a Federal bankruptcy court would have broad powers to enforce the foregoing provisions and determine the nature and status of the payment claims of the holders of the Subordinated Securities. At any time after the Trustee or the holders have made a declaration of acceleration with respect to Subordinated Securities of any series, but before the Trustee has obtained a judgment or decree for payment of the money due, the holders of a majority in principal amount of Outstanding Subordinated Securities of that series may, under certain circumstances, rescind and annul such declaration and its consequences. This rescission by the holders could occur if we have made or provided for all payments due (other than those due as a result of acceleration) on the Subordinated Securities of that series and (i) all Events of Default with respect to Subordinated Securities of that series have been cured by us or (ii) if permitted, waived by the holders of at least a majority in aggregate principal amount of the Outstanding Subordinated Securities of that series. (Subordinated Indenture, Section 502.) The following events will be Defaults under the Subordinated Indenture with respect to Subordinated Securities of any series: (1) an Event of Default with respect to such series of Subordinated Securities; (2) our failure to pay principal or premium, if any, (including our failure to deliver any Capital Securities in exchange for or upon the conversion of Subordinated Securities) on any Subordinated Security of that series at Maturity; (3) our failure to pay, continued for 30 days, any interest on any Subordinated Security of that series when due and payable; (4) our failure to deposit any sinking fund payment in respect of any Subordinated Security of that series when due; (5) our failure to perform any of our covenants or warranties in the Subordinated Indenture (but not if such covenant or warranty is solely for the benefit of another series of Subordinated Securities), continued for 60 days after the written notice provided for in the Subordinated Indenture; (6) our default or a default by the Bank under certain indebtedness for money borrowed in an aggregate principal amount exceeding $3,000,000 (including a default with respect to Subordinated Securities of another series), provided that: (i) such default results in the acceleration of such indebtedness, and 14 (ii) such acceleration is not rescinded or annulled, or the indebtedness discharged by us, within ten days after we receive written notice provided for in the Senior Indebtedness; and (7) any other default with respect to Subordinated Securities of that series. (Subordinated Indenture, Section 507.) There will be no right of acceleration of the payment of principal of the Subordinated Securities of such series if we default in the payment or default in the performance of any covenant or agreement relating to the Subordinated Securities or the Subordinated Indenture (including any obligation to exchange Capital Securities for Subordinated Securities of such series), unless the terms of a series of Subordinated Securities provide otherwise. If we Default on any series of the Subordinated Securities, then the Trustee may seek to enforce its rights and the rights of the holders of Subordinated Securities of such series or seek the performance of any covenant or agreement in the Subordinated Indenture. (Subordinated Indenture, Section 503.) Other than its duty to exercise the required standard of care upon the occurrence of a Default, the Trustee is not obligated to exercise any of its rights or powers under the Subordinated Indenture at the request, order or direction of any holders unless the holders offer the Trustee reasonable indemnity or security against the costs, expenses and liabilities which may be incurred. (Subordinated Indenture, Section 602.) Subject to certain conditions, the holders of a majority in principal amount of any series of Subordinated Securities may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or for exercising any power conferred upon the Trustee, for any series of Debt Securities. (Subordinated Indenture, Section 512.) Once a year, we are required to deliver an officers' certificate to the Trustee. In this certificate we certify as to our performance and observance of the terms, provisions and conditions in the Subordinated Indenture and as to the absence of default. (Subordinated Indenture, Section 1010.) CONVERSION We will describe in the Prospectus Supplement for any series of Subordinated Securities, the terms, if any, on which that series is convertible into Capital Securities ("Subordinated Convertible Securities"). Such Subordinated Convertible Securities will be convertible into Capital Securities at the conversion price and at the times set forth in the Prospectus Supplement. The terms of such Subordinated Convertible Securities may also include a right for us to redeem, exchange, repay or repurchase those Subordinated Convertible Securities. EXCHANGEABILITY The holders of Subordinated Securities of a series may be obligated at any time or at Maturity to exchange them for our Capital Securities. We will describe the terms of any exchange and any Capital Securities in the Prospectus Supplement relating to such series of Subordinated Securities. We describe our Preferred Stock, Common Stock, and Capital Securities below under "Description of Preferred Stock," "Description of Common Stock," and "Description of Capital Securities," respectively. 15 DESCRIPTION OF PREFERRED STOCK The following summary describes general terms of our Preferred Stock. If the Board of Directors authorizes a new series of Preferred Stock, then the specific provisions establishing the series will be set forth in a Certificate of Vote of Directors. The Certificate of Vote will then be filed with the SEC and with the Massachusetts Secretary of State as an amendment to our Restated Articles of Organization. The terms of any series of the Preferred Stock offered by us will also be described in the Prospectus Supplement for that offering. Currently, we have no shares of Preferred Stock outstanding. GENERAL Under our Articles of Organization, our Board of Directors may provide for the issuance of up to 10,000,000 shares of Preferred Stock, without par value, in one or more series. When establishing a series of Preferred Stock, the Board will determine the following matters with respect to that series: (1) designations or titles; (2) dividend rates; (3) rights in the event of liquidation, distribution or sale of assets or dissolution or winding up; (4) sinking fund provisions; (5) redemption or purchase account provisions; (6) conversion provisions; and (7) voting rights. Holders of shares of Preferred Stock do not have any preemptive rights as to any future issuances of preferred stock by us. Each series of our Preferred Stock will have a liquidation preference. The liquidation preference does not reflect the price at which the shares will trade in the market. The market price of any series of our Preferred Stock will fluctuate with changes in market and economic conditions as well as with changes in our financial condition and prospects. When we issue shares of Preferred Stock, the shares are fully paid and non-assessable. There is a provision of Massachusetts law (MGL Sec. 45, C.156B) that relates to distributions by us to our stockholders (other than a distribution of our stock). If we make a distribution when we are insolvent, or that renders us insolvent, then our stockholders would be required to pay back to us the amount of the distribution we made to them (or the portion of the distribution that caused us to become insolvent). RANK With respect to dividend rights and rights on liquidation, winding up and dissolution, any series of our Preferred Stock will rank senior to all classes of our common stock and our Junior Participating Preferred Stock, Series D, and any equity securities we issue that by their terms rank junior to the Preferred Stock (collectively referred to as "junior securities"). With respect to dividend rights and rights on liquidation, winding up and dissolution, any series of Preferred Stock will rank equally with any equity securities we issue that by their terms rank equally with the Preferred Stock (collectively referred to as "parity securities"). Likewise, with respect to such rights, the shares of any series of Preferred Stock will rank junior to any equity securities we issue that by their terms rank senior to the Preferred Stock (collectively referred to as "Senior Securities"). For these purposes, the term "equity securities" does not include debt securities convertible into or exchangeable for equity securities. 16 DIVIDENDS You will be entitled to receive cash dividends on your shares of Preferred Stock, when, as and if our Board of Directors declares those dividends out of funds legally available for that purpose. We will describe the rates and payment dates applicable to each series of Preferred Stock in the Prospectus Supplement relating to that offering. We will pay dividends to the holders of record of the Preferred Stock that appear on our books (or, if applicable, the records of the Depositary) on the record dates set by our Board. The dividends on any series of Preferred Stock may be cumulative or non- cumulative. Our Board may not declare and we may not pay (or set apart funds for the payment of) any full dividends on any parity securities unless we have paid or set apart funds for the payment of dividends on the Preferred Stock. If we do not pay full dividends, the Preferred Stock shall share dividends pro rata with the parity securities. If dividends are cumulative, any accumulated unpaid dividends will not bear interest. CONVERSION We will describe in the Prospectus Supplement for any series of the Preferred Stock the terms, if any, on which shares of that series are convertible into shares of another series of Preferred Stock or Capital Securities. For any series of our Preferred Stock which is convertible, we will reserve and keep available the number of shares of Preferred Stock or Capital Securities that are deliverable upon the conversion of the shares of that series. We will not issue any fractional shares or scrip for fractional shares of Preferred Stock or Capital Securities in connection with a conversion. In lieu of issuing fractional shares, we will make cash payment for all such fractional shares. We may elect to make this cash payment equal to either (1) the current market price of a holder's fractional interest, or (2) the holder's proportionate interest in the net proceeds (following the deduction of applicable transaction costs) from the sale by an agent of shares of Preferred Stock or Capital Securities representing the aggregate of all holders' fractional shares. If you are the holder of shares of Preferred Stock at the close of business on a dividend payment record date, you are entitled to receive the dividend payable on such shares on the corresponding dividend payment date. Your right to that dividend will continue to exist notwithstanding any subsequent conversion of the shares or our default in payment of the dividend due. (If your shares of Preferred Stock are called for redemption and the redemption date falls between a record date and a dividend payment date, then you will receive accrued and unpaid dividends to such redemption date instead of the regular dividend for that period.) Except as noted, we will not make any payment or allowance for unpaid dividends, whether or not in arrears, on converted shares or for dividends on the shares of Preferred Stock or Capital Securities that we issue upon conversion. EXCHANGEABILITY The holders of shares of Preferred Stock of any series may be obligated at any time or at maturity to exchange the shares for our Capital Securities or our other debt securities. We will describe the terms of any exchange and any Capital Securities or other debt securities in the Prospectus Supplement relating to that offering. Our Capital Securities are described below under "Description of Capital Securities." REDEMPTION In general, a series of Preferred Stock may be redeemable at any time, in whole or in part, at our option or that of the holder upon terms and at the redemption prices set forth in the Prospectus Supplement relating to such series. In the event of partial redemptions of our Preferred Stock, our Board of Directors will decide the manner in which the shares to be redeemed are to be selected. 17 On and after a redemption date, dividends cease to accrue on shares of Preferred Stock called for redemption unless we default in the payment of the redemption price. Your rights as a holder of such shares will terminate on the redemption date, except for the right to receive the redemption price. LIQUIDATION PREFERENCE If you purchase shares of a series of our Preferred Stock that rank senior to our junior securities, then in the event of our liquidation, dissolution or winding up, whether voluntary or involuntarily, you will be entitled to receive a liquidation payment plus an amount equal to any accrued and unpaid dividends. The payment will be made to you out of our assets that are available for distribution to stockholders. The payment on your Preferred Stock will be made prior to any distribution to holders of any junior securities, including our Common Stock. We will describe the specific provisions with respect to the liquidation payment to which you will be entitled on any series of Preferred Stock in the Prospectus Supplement with respect to that offering. If the amounts to which you are entitled upon our liquidation, dissolution or winding up are not paid in full, then you and the other holders of the Preferred Stock of that series will be entitled to share in any distribution of our assets. You and the other holder of that series and the holders of any parity securities will share ratably in proportion to the full liquidation preferences to which each of you is entitled. After you have received payment of the full amount of the liquidation preference to which you are entitled, you will not be entitled to any further participation in any distribution of our assets. We shall not be deemed to have been voluntary or involuntarily liquidated, dissolved or wound up in the following instances: (1) the merger or consolidation of us with or into one or more corporations pursuant to any statute which provides in effect that our stockholders shall continue as stockholders of the continuing or combined corporation; or (2) the acquisition by us of assets or stock of another corporation. VOTING RIGHTS In general, if you purchase shares of Preferred Stock, you will not have voting rights with respect to those shares. Under Massachusetts law, however, you are entitled to vote in certain limited circumstances. If we wish to amend our Restated Articles of Organization and such amendment would adversely affect the rights of a particular class or series of stock, we would be required to obtain the affirmative vote of at least two-thirds of the shares of that class or series. If you were a holder of shares of the affected class or series, you would be entitled to vote on the proposed amendment. In such an instance, all series of a class of stock which are adversely affected in the same manner vote together as one class and any other series, which is adversely affected in a different manner, votes as a separate class. You would also be entitled to a vote during any period in which dividends on the series of Preferred Stock that you hold are cumulatively in arrears in the amount of six or more full quarterly dividends. Under those circumstances, you and the other holders of that series, would be entitled to elect one director to serve until we have cured the arrearage. We will describe any additional provisions related to voting rights for a particular series of Preferred Stock in the Prospectus Supplement for that offering. The Board of Governors of the Federal Reserve oversees matters relating to bank holding companies like us. Under its regulations, if the holders of shares of any series of our Preferred Stock become entitled to vote for the election of directors, that series may be deemed a "class of voting securities." Upon that occurrence, if you held 25% or more of that series (or 5% if you otherwise exercise a controlling influence over us) you might become subject to regulation as a bank holding company. If you held a lesser amount and wished to acquire or retain shares of that series, you might need the approval of the Board of Governors to do so depending on the amount of shares you hold. 18 DEPOSITARY SHARES GENERAL. We may from time to time elect to offer fractional shares of Preferred Stock, rather than full shares of Preferred Stock. In such an event, we will issue receipts for Depositary Shares, each of which will represent a fraction (to be set forth in the Prospectus Supplement relating to a particular series of Preferred Stock) of a share of a particular series of Preferred Stock. We will deposit the shares of any series of Preferred Stock represented by Depositary Shares under a Deposit Agreement between us and a bank or trust company that we select to act as Depositary. The bank or trust company that we select will have its principal office in the United States and a combined capital and surplus of at least $50,000,000. The rights of each owner of a Depositary Share will be set forth in the Deposit Agreement. In general, you would be entitled to all the rights and preferences of the Preferred Stock represented by your Depositary Share, in proportion to the applicable fraction represented by such Depositary Share. These rights include dividend, voting, redemption, conversion and liquidation rights. The Depositary will issue Depositary Receipts that represent the Depositary Shares. The Depositary will distribute the Depositary Receipts to those persons purchasing the fractional shares of Preferred Stock in accordance with the terms of the offering. We have filed the forms of Deposit Agreement and Depositary Receipt as exhibits to the Registration Statement. Please review those documents for further details not set forth in the summary below. We may order the Depositary to issue temporary Depositary Receipts to holders in the event the definitive receipts are not ready at the time of distribution. The temporary Depositary Receipts are substantially identical to the definitive Depositary Receipts and entitle the holders to all the rights pertaining to the definitive Depositary Receipts. In such an event, we will have the definitive Depositary Receipts prepared without unreasonable delay. The holders may exchange the temporary Depositary Receipts for definitive Depositary Receipts at our expense. DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute cash dividends or other cash distributions received from us to the record holders of Depositary Shares relating to the Preferred Stock. The Depositary will make the distributions to each record holder in proportion to the numbers of such Depositary Shares owned by such holder. In the event of a distribution other than in cash, the Depositary will distribute the property received from us to the record holders of Depositary Shares. If the Depositary determines that it is not feasible to make such distribution, it may, with our approval, sell such property and distribute the net proceeds from such sale to such holders. REDEMPTION OR EXCHANGE OF STOCK. If we decide to redeem a series of Preferred Stock represented by Depositary Shares, the Depositary will redeem the Depositary Shares from the proceeds resulting from the redemption of the Preferred Stock. If we decide to exchange a series of Preferred Stock represented by Depositary Shares, the Depositary will exchange the Depositary Shares for the Capital Securities or other debt securities to be issued in exchange for the Preferred Stock in accordance with the terms of such series of Preferred Stock. The Depositary will redeem or exchange the Depositary Shares at a price per Depositary Share equal to the applicable fraction of the redemption price per share or market value of Capital Securities or other debt securities per Depositary Share paid in respect of the shares of Preferred Stock so redeemed or exchanged. Whenever we redeem or exchange shares of Preferred Stock held by the Depositary, the Depositary will redeem or exchange as of the same date the number of Depositary Shares representing shares of Preferred Stock so redeemed or exchanged. If the Depositary is to redeem or exchange fewer than all the Depositary Shares, the Depositary Shares to be redeemed or exchanged will be selected by the Depositary by lot or pro rata or by any other equitable method that we may determine. WITHDRAWAL OF STOCK. As a holder of Depositary Shares, you may surrender your Depositary Receipts to the Depositary and receive the number of whole shares of the related series of Preferred Stock and 19 any money or other property represented by such Depositary Receipts. You will be entitled to receive whole shares of Preferred Stock on the basis set forth in the related Prospectus Supplement for such series of Preferred Stock. You will not thereafter be entitled to deposit such Preferred Stock under the Deposit Agreement or to receive Depositary Receipts for your shares of Preferred Stock. If the Depositary Shares you surrendered exceed the number of Depositary Shares that represent the number of whole shares of Preferred Stock to be withdrawn, the Depositary will deliver to you at the same time a new Depositary Receipt evidencing such excess number of Depositary Shares. VOTING THE PREFERRED STOCK. We will send to the Depositary all notices of meetings at which the holders of the Preferred Stock are entitled to vote. The Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such Preferred Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date of the Preferred Stock) may instruct the Depositary how to vote with respect to the amount of Preferred Stock represented by such holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the amount of the Preferred Stock represented by such Depositary Shares in accordance with such instructions. We agree to take all reasonable actions deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of the Preferred Stock for which it has not received specific instructions from the holders of Depositary Shares representing such Preferred Stock. CONVERSION RIGHTS. As a holder of Depositary Shares, you may instruct us to convert your Depositary Shares into Capital Securities or other Preferred Stock in accordance with the terms of the series of Preferred Stock for which you hold Depositary Shares. When you deliver such instructions you must also surrender your Depositary Receipts. We will convert the shares of Preferred Stock for which you hold Depositary Shares into a specified number of whole shares of our Capital Securities or our other Preferred Stock (as the case may be, in accordance with the terms of such series of the Preferred Stock). We will determine the number of resulting shares that you are to receive by dividing the aggregate liquidation preference of such Depositary Shares by the Conversion Price then in effect. We may adjust the Conversion Price from time to time. We will make a cash payment to you in lieu of any fractional shares that would result from the conversion. AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT. We and the Depositary may at any time agree to amend the form of Depositary Receipt that evidences the Depositary Shares and any provision of the Deposit Agreement. We may not, however, make any amendment that materially and adversely alters the rights of the holders of Depositary Shares unless the holders of at least a majority of the Depositary Shares then outstanding have approved such amendment. The Deposit Agreement will automatically terminate if any of the following occurs: (1) we have redeemed all outstanding Depositary Shares; (2) each share of Preferred Stock has been converted into Capital Securities or other Preferred Stock or has been exchanged for Capital Securities or other debt securities; or (3) there has been a final distribution in respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of our business and such distribution has been distributed to the holders of Depositary Shares. We may also terminate the Deposit Agreement at any time upon 60 days prior written notice to the Depositary. If we terminate the Deposit Agreement, the Depositary will deliver to the record holders, upon surrender of the Depositary Receipts, the number of whole or fractional shares of Preferred Stock as are represented by their Depositary Receipts. CHARGES OF DEPOSITARY. We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will also pay all charges of the Depositary in connection with (1) the initial deposit of the Preferred Stock, (2) the initial issuance of the Depositary Shares, (3) all withdrawals of shares of Preferred Stock by owners of Depositary Shares, and (4) any redemption or 20 exchange of the Preferred Stock. As a holder of Depositary Shares, you must pay any other transfer and other taxes and governmental charges and such other charges or expenses that the Deposit Agreement expressly provides are for your account. MISCELLANEOUS. We will provide to the Depositary all reports and communications that we are required to furnish to our Preferred Stock holders. The Depositary will forward these reports and communications to the holders of the Depositary Shares. We and the Depositary are not liable for failing to perform our obligations under the Deposit Agreement if our performance of those obligations is prevented or delayed by law or any circumstance beyond our control. Our obligations under the Deposit Agreement and those of the Depositary are limited to performance in good faith of our duties under the agreement. We and the Depositary are not obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished. The Depositary may rely upon (1) written advice of counsel or accountants, (2) information it receives from persons presenting Preferred Stock for deposit, (3) holders of Depositary Receipts, (4) other persons it believes to be competent, and (5) documents it believes to be genuine. RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any time by giving us notice. We also may remove the Depositary at any time by giving it notice. We will appoint a successor Depositary prior to any such resignation or removal becoming effective. We must appoint a successor Depositary within 60 days after delivery of the notice of resignation or removal. The successor Depositary must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. DESCRIPTION OF COMMON STOCK GENERAL Our Common Stock as of October 31, 1998 consisted of 500,000,000 authorized shares, par value $1.00 per share, of which there were 294,615,638 shares outstanding. Our Common Stock is traded on the New York Stock Exchange and the Boston Stock Exchange. The Bank, through its agent Boston EquiServe, is the transfer agent and registrar for our Common Stock. We may issue Common Stock from time to time. Our Board of Directors must approve the amount of stock we sell and the price for which it is sold. Holders of our Common Stock do not have any preferential rights or preemptive rights to buy or subscribe for capital stock or other securities that we may issue. Our Common Stock does not have any redemption or sinking fund provisions or any conversion rights. We issue shares of our Common Stock in connection with our dividend reinvestment and common stock purchase plan. We also issue shares in connection with our employee benefit, stock option and incentive plans (and those of our subsidiaries). When we issue shares of Common Stock, the shares will be fully paid and non-assessable. There is a provision of Massachusetts law (MGL Sec. 45, C.156B) that relates to distributions by us to our stockholders (other than a distribution of our stock). If we make a distribution when we are insolvent, or that renders us insolvent, then our stockholders would be required to pay back to us the amount of the distribution we made to them (or the portion of the distribution that caused us to become insolvent). LIQUIDATION If we liquidate, dissolve, or wind up, whether voluntarily or involuntarily, then you, as a holder of our Common Stock, would be entitled to share proportionally in any of our assets to which Common Stock holders are entitled when such events occur. Your rights, however, would rank behind those of our creditors and behind those of any holders of our Preferred Stock. 21 VOTING If you are a holder of our Common Stock, you are entitled to one vote per share for all matters on which stockholders are entitled to vote. Our Common Stock has non-cumulative voting rights. This means holders of the majority of our shares can elect all of our directors. DIVIDENDS If our Board of Directors declares a dividend (out of funds legally available for dividends), holders of our Common Stock are entitled to share equally (share for share) in such dividends whether they are payable in cash, stock or other property. We cannot pay any Common Stock dividends, however, until we have paid any accrued but unpaid Preferred Stock dividends. STOCKHOLDER RIGHTS PLAN On June 28, 1990, our Board of Directors adopted a stockholder rights program. Under the program, on July 12, 1990, each of our common stockholders received a dividend of one Preferred Stock purchase right for each outstanding share of our Common Stock that the stockholder owned. We refer to these Preferred Stock purchase rights as the "rights". Each share of stock issued after July 12, 1990 also received a right. As a result of our June 22, 1998 2- for-1 stock split, the rights have been adjusted so that one-half of a right is associated with each currently outstanding share of our Common Stock. Each newly issued share of Common Stock will also have one-half of a right associated with it under the program. The rights trade automatically with our shares of Common Stock and become exercisable only under certain circumstances described below. The purpose of the rights is to encourage potential acquirors to negotiate with our Board of Directors prior to attempting a takeover bid and to provide our Board with leverage in negotiating on behalf of all of our stockholders the terms of any proposed takeover. The rights may have certain anti-takeover effects. They should not, however, interfere with any merger or other business combination approved by our Board of Directors. Until a right is exercised, the holder of a right will not have any rights as a stockholder. When the rights become exercisable, holders of the rights will be able to purchase from us a unit equal to one one-thousandth of a share of our Series D Junior Participating Preferred Stock at a price of $50 per unit, subject to adjustment. In general, the rights will become exercisable upon the earlier of: . ten days following a public announcement by us that a person or group has acquired (i) beneficial ownership of 15% or more of our Common Stock or (ii) voting securities representing 15% or more of the total voting power of the Company, or . ten business days (or a later date if determined by our Board) after the beginning of a tender offer or exchange offer that would result in a person or group beneficially owning (i) 15% or more of our Common Stock or (ii) voting securities representing 15% or more of the total voting power of the Company. In general, if a person or group becomes the beneficial owner of 15% or more of our Common Stock or of voting securities representing 15% or more of our total voting power, each right (other than those owned by that person or group) will then entitle its holder to receive, upon exercise, Common Stock equal to two times the exercise price of the right. We refer to this occurrence as a "flip-in event". A flip-in event does not occur if there is an offer for all of our outstanding shares of Common Stock and voting securities that our Board believes is fair to our stockholders and in the Company's best interest. In addition, at any time after a flip-in event, the Board may give rights holders (other than rights held by the person or group who triggered the flip- in event) the opportunity to exchange the rights for our Common Stock (one share of our Common Stock for each right). If after we announce that someone has acquired beneficial ownership of 15% or more of the Common Stock or voting securities representing 15% or more of the total voting power of the Company, we are acquired or more than 50% of our assets, cash flow or earning 22 power is sold or transferred, then each right (other than those owned by the person or group who triggered the flip-in event), will entitle the holder to receive, upon exercise, shares of stock in that person or group having a value equal to two times the exercise price of the right. We may redeem the rights at $.01 per right at any time before the date that is ten days after the date in which 15% or more of our Common Stock or voting power is acquired. We may extend this redemption period at any time while the rights are still redeemable. The rights will expire at the close of business on July 12, 2000 unless we redeem or exchange them before that date. This description of the rights plan is not intended to be a complete description. For a full description of the rights plan, you should read the entire Rights Agreement, as amended through December 12, 1995. The Rights Agreement is between us and the Bank as rights agent. A copy of the Rights Agreement is incorporated by reference into our Registration Statement on Form 8-A dated July 2, 1990 and to our Annual Report on Form 10-K for the year ended December 31, 1996. You may obtain a copy at no charge by writing to us at the address listed on page 4. DESCRIPTION OF CAPITAL SECURITIES GENERAL A Prospectus Supplement may provide that we may issue Capital Securities in exchange for or upon conversion of Subordinated Securities or Preferred Stock of any series. "Capital Securities" may consist of Common Stock, perpetual Preferred Stock or, if the Board of Governors (or our primary federal banking regulator at that time) permits, our other Securities. The Prospectus Supplement relating to a series of Subordinated Securities or Preferred Stock which are exchangeable for or convertible into Capital Securities will contain a description of the Capital Securities. TENDER OFFER RULES The SEC's rules and regulations relating to tender offers may be applicable to exchanges or conversions such as that of Capital Securities for Subordinated Securities or for Preferred Stock of any series. The applicable SEC rules are Rules 13e-4 and 14e-1. If Rule 13e-4 or Rule 14e-1 (or any successor rule or rules) applies to such transactions at the time of such exchange or conversion, we will comply with such rule and will afford holders of such Subordinated Securities or Preferred Stock all rights to which they are entitled. In addition, we will make all filings required by such rule. DESCRIPTION OF SECURITIES WARRANTS We may issue Securities Warrants for the purchase of other Debt Securities or Preferred Stock or Common Stock. We may issue these Securities Warrants together with any Debt Securities or Preferred Stock or Common Stock offered by any Prospectus Supplement or we may issue them separately. We will issue Securities Warrants under Securities Warrant Agreements to be entered into between us and a bank or trust company, as the Securities Warrant Agent. The specific information will be set forth in the Prospectus Supplement relating to the particular issue of Securities Warrants. The form of Securities Warrant Agreement, including the form of certificates representing the Securities Warrant, is filed as an exhibit to the Registration Statement. The form reflects the alternative provisions that we may include in the Securities Warrant Agreements that will be entered into with respect to particular offerings of Securities Warrants. The following summaries of certain provisions of the Securities Warrant Agreement and the Securities Warrant Certificates are not complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Securities Warrant Agreement and the Securities Warrant Certificates including the definitions therein of certain terms. Wherever we refer to defined terms of the Securities Warrant Agreement, we intend that such defined terms shall be incorporated herein by reference. 23 GENERAL The Prospectus Supplement relating to the particular issue of Securities Warrants will describe the terms of the offered Securities Warrants, the Securities Warrant Agreement relating to the offered Securities Warrants and the Securities Warrant Certificates representing the offered Securities Warrants, including the following: (1) if we offer Securities Warrants for separate consideration, the offering price and the currency for which Securities Warrants may be purchased; (2) the designation, aggregate principal amount, currency and terms of the series of Debt Securities purchasable upon exercise of the offered Securities Warrants; (3) the designation, number, stated value and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series of Preferred Stock purchasable upon exercise of Preferred Stock Warrants and the price at which such number of shares of Preferred Stock of such series may be purchased upon such exercise; (4) the number of shares of Common Stock purchasable upon exercise of Common Stock Warrants and the price at which such number of shares of Common Stock may be purchased upon such exercise; (5) the date, if any, on and after which the offered Securities Warrants and the related Debt Securities and/or Preferred Stock and/or Common Stock will be separately transferable; (6) the date on which the right to exercise the offered Securities Warrants shall commence and the date on which such right shall expire; (7) a discussion of the specific U.S. federal income tax, accounting and other considerations applicable to the Securities Warrants; (8) whether we will issue the offered Securities Warrants represented by the Securities Warrant Certificates in registered or bearer form, and if registered, where they may be transferred and registered; and (9) any other terms of the offered Securities Warrants. A holder of Securities Warrant Certificates may exchange them on the terms specified in the Prospectus Supplement for new Securities Warrant Certificates of different denominations. A holder of Securities Warrants may exercise such Securities Warrants at the corporate trust office of the Securities Warrant Agent or at any other office indicated in the Prospectus Supplement relating to those Securities Warrants. Prior to exercising their Securities Warrants, holders of Securities Warrants will not have any of the rights of holders of the Debt Securities or Preferred Stock or Common Stock purchasable upon such exercise. The rights that a holder of Securities Warrants would not have prior to exercise include: (1) the right in the case of Debt Warrants to payments of principal of or any premium or interest, if any, on the Debt Securities purchasable upon such exercise, or to enforce covenants in the Indentures, and (2) the right in the case of Preferred Stock Warrants and Common Stock Warrants to receive payments of dividends or distributions of any kind, if any, on the Preferred Stock and Common Stock, respectively, or to exercise any applicable right to vote. EXERCISE OF WARRANTS Each Securities Warrant will entitle the holder to purchase a certain principal amount of Debt Securities or a certain number of shares of Preferred Stock or Common Stock, at a certain exercise price. In each case, we shall set forth this information in the Prospectus Supplement relating to the Securities Warrants. Your right to purchase the Securities will be contingent on your paying such exercise price in full in the currency and in the manner specified in the Prospectus Supplement. You may exercise your Securities Warrants 24 at any time up to the close of business on the expiration date (or such later date to which we may extend such expiration date). Securities Warrants that you do not exercise will become void. We will forward the Debt Securities or Preferred Stock or Common Stock to you upon the exercise of the Securities Warrant after the Securities Warrant Agent receives (i) payment of the exercise price and (ii) the Securities Warrant Certificate properly completed and duly executed. If you exercise fewer than all of the Securities Warrants represented by such Warrant Certificate, we will issue you a new Securities Warrant Certificate for the remaining number of Securities Warrants. PLAN OF DISTRIBUTION We may sell the offered Securities (i) through underwriters or dealers (including through BancBoston Robertson Stephens Inc., our wholly-owned subsidiary), (ii) directly to one or more purchasers, or (iii) through agents, including BancBoston Robertson Stephens. We will identify any such underwriter, dealer or agent involved in the offer and sale of the Securities in the related Prospectus Supplement. We will also include in the Prospectus Supplement the purchase price or prices of the offered Securities, our proceeds from the sale, any underwriting discounts or commissions and other items constituting underwriters' compensation. If underwriters are used in the sale, the offered Securities will be acquired by the underwriters for their own account and may be resold in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase such offered Securities will be subject to certain conditions. The underwriters will be obligated to purchase all the offered Securities if they purchase any of such offered Securities. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. Offered Securities may also be sold directly by us or through agents designated by us. Unless indicated in the Prospectus Supplement, any such agent is acting on a best efforts basis for the period of its appointment. Underwriters, dealers and agents that participate in the distribution of the offered Securities may be underwriters as defined in the Securities Act of 1933, as amended (the "Act"), and any discounts or commissions received by them from us and any profit on the resale of the offered Securities by them may be treated as underwriting discounts and commissions under the Act. We may have agreements with the underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities under the Act, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make. BancBoston Robertson Stephens is our wholly-owned subsidiary. Accordingly, the distribution of Securities will conform to the requirements set forth in Rule 2720 of the Conduct Rules of the National Association of Securities Dealers, Inc. Unless otherwise specified in the related Prospectus Supplement, each series of Securities will be a new issue with no established trading market, other than the Common Stock which is listed on the NYSE and the BSE. Any shares of Common Stock sold pursuant to a Prospectus Supplement will be listed on the NYSE and the BSE, subject to official notice of issuance. We may elect to list any other securities on an exchange, but we are not obligated to do so. Any underwriter may engage in over-allotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which creates a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the Securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the Securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the Securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue those activities at any time. 25 Underwriters, dealers and agents may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of their business. In connection with any particular distribution of Securities, we may enter into swaps or other hedging transactions with, or arranged by, an underwriter, dealer or agent participating in such distribution or one of their affiliates. The underwriter, dealer, agent or affiliate may receive compensation, trading gain or other benefits from such transaction. LEGAL OPINIONS Gary A. Spiess, who is our General Counsel and Clerk, will give an opinion on the validity of the Securities that we offer under this Prospectus. Brown & Wood LLP, New York, New York will pass upon certain legal matters relating to the offered Securities for the underwriters. Brown & Wood LLP will rely as to all matters of Massachusetts law on the opinion of Mr. Spiess. As of October 31, 1998, Mr. Spiess had a direct or indirect interest in 90,823 shares of our Common Stock and had options to purchase an additional 96,264 shares, of which options to purchase 39,027 shares will be exercisable within 60 days after October 31, 1998. EXPERTS PricewaterhouseCoopers LLP, independent accountants, audited our financial statements for the fiscal year ended December 31, 1997 incorporated by reference into this Prospectus and elsewhere into the registration statement. The financial statements contained in and incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 31, 1997 have been incorporated herein by reference in reliance upon the report set forth therein of, and upon the authority of, PricewaterhouseCoopers LLP as experts in accounting and auditing. The report of PricewaterhouseCoopers LLP contained in our 1997 Annual Report on Form 10-K includes an explanatory paragraph related to the restatement of our 1995 consolidated financial statements to retroactively reflect the acquisition of BayBanks, Inc., which we completed in July 1996 and which we accounted for as a pooling of interests. Any audited financial statements and schedules that we incorporate or that are deemed to be incorporated by reference into this Prospectus that are the subject of a report by independent accountants will be so incorporated by reference in reliance upon such reports and upon the authority of such firms as experts in accounting and auditing to the extent covered by consents of these accountants filed with the SEC. 26 PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Estimated expenses in connection with the issuance and distribution of the Securities being registered other than underwriting compensation are as follows: SEC registration fee............................................. $ 337,770 NASD fee......................................................... 30,500 Rating agency fees............................................... 300,000 Printing and engraving expenses.................................. 30,000 Accountants' fees and expenses................................... 300,000 Trustees' fees and expenses...................................... 20,000 Listing fees..................................................... 30,000 Miscellaneous.................................................... 1,730 ---------- Total........................................................ $1,050,000 ==========
All the above amounts except the SEC registration fee and NASD fee are estimated. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 67 of Chapter 156B of the Massachusetts General Laws authorizes a corporation to indemnify any director, officer, employee or other agent of the corporation to whatever extent specified in or authorized by (i) the articles of organization, (ii) a by-law adopted by the stockholders or (iii) a vote adopted by the holders of a majority of the shares of stock entitled to vote on the election of directors. The Registrant's By-laws provide indemnity to the Registrant's Directors and Officers in such capacity or as directors or officers of a wholly-owned subsidiary of the Registrant for liability resulting from judgments, fines, expenses or settlement amounts incurred in connection with any action, including an action by or in the right of the Registrant, brought against such person in such capacity. Under Massachusetts law and the By-laws, no indemnification may be provided for any person with respect to any matter as to which he or she shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his or her action was in the best interest of the Registrant. The By-laws also provide that, with respect to any matter disposed of by a compromise payment by such Director or Officer pursuant to a consent decree or otherwise, no indemnification shall be provided unless such compromise shall be ordered by a court or shall be approved as being in the best interest of the Registrant, after notice that it involves such indemnification: (a) by a disinterested majority of the Directors then in office or (b) by a majority of the disinterested Directors then in office, provided that there has been obtained an opinion in writing of independent counsel to the effect that such person appears to have acted in good faith in the reasonable belief that his or her action was in the best interests of the Registrant or (c) by the holders of a majority of the outstanding stock at the time entitled to vote for Directors, voting as a single class, exclusive of any stock owned by any interested Director or officer. Under Massachusetts law, a court may uphold indemnification in connection with a suit in which there is a recovery by or in the right of a corporation. The By-laws also provide for indemnification for all other directors of the Registrant's wholly-owned subsidiaries, and for all other officers of such wholly-owned subsidiaries to the extent authorized by the Board of Directors, on the same statutory standard set forth in the preceding paragraph. Where such an officer is wholly successful in defending the claim, he or she shall be entitled to indemnification without further authorization of the Board. Directors and officers of other subsidiaries and joint ventures and employees and agents of the Registrant and any subsidiaries or joint ventures may be indemnified as determined by the Board from time to time. II-1 ITEM. 16. EXHIBITS. (1)(a) --Form of Underwriting Agreement relating to the Securities. (4)(c) --Senior Indenture, between the Corporation and Norwest Bank Minnesota, National Association ("Norwest"), as Trustee, dated as of June 15, 1992, incorporated herein by reference to Exhibit 4(c) to the Corporation's Registration Statement on Form S-3 (Registration Number 33-48418). (4)(d) --Subordinated Indenture between the Corporation and Norwest, as Trustee, dated as of June 15, 1992, incorporated herein by reference to Exhibit 4(d) to the Corporation's Registration Statement on Form S-3 (Registration Number 33-48418). (4)(e) --First Supplemental Indenture between the Corporation and Norwest, as Trustee dated as of June 24, 1993, incorporated herein by reference to Exhibit 4(e) to the Corporation's Current Report on Form 8-K dated June 24, 1993 (File No. 1-6522). (4)(f) --Form of Securities Warrant Agreement. (4)(g) --Form of Certificates representing the Debt Warrants, Preferred Stock Warrants and Common Stock Warrants (included in Exhibit (4)(f)). (4)(h) --Form of Deposit Agreement. (4)(I) --Form of Depositary Receipt (included in Exhibit (4)(h)). (4)(j) --Rights Agreement, dated as of June 28, 1990, and as amended through December 12, 1995, between the Corporation and the Bank, as Rights Agent, and the description of the Rights, incorporated herein by reference to the Corporation's registration statement on Form 8-A relating to the Rights and to Exhibit 1 of such registration statement (File No. 1-6522) and Exhibit 4(g) to the Corporation's Annual Report on Form 10-K for the year ended December 31, 1996 (File No. 1-6522). (5) --Opinion of Gary A. Spiess, Esq. (12)(a) --Computation of the Corporation's Consolidated Ratio of Earnings to Fixed Charges (excluding interest on deposits) incorporated herein by reference to Exhibit 12(a) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998. (12)(b) --Computation of the Corporation's Consolidated Ratio of Earnings to Fixed Charges (including interest on deposits) incorporated herein by reference to Exhibit 12(b) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998. (12)(c) --Computation of the Corporation's Consolidated Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividend Requirements (excluding interest on deposits) incorporated herein by reference to Exhibit 12(c) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998. (12)(d) --Computation of the Corporation's Consolidated Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividend Requirements (including interest on deposits) incorporated herein by reference to Exhibit 12(d) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998. (23)(a) --Consent of PricewaterhouseCoopers LLP (23)(b) --Consent of Gary A. Spiess, Esq. (included in Exhibit 5). (24) --Power of Attorney of certain officers and directors. (25) --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Norwest, as Trustee.
II-2 ITEM 17. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement (i) to include any Prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the Prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) herein do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed by the undersigned Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the Securities offered therein, and the offering of such Securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the Securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the Securities offered therein, and the offering of such Securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the Securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes that: (1) for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of Prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and (2) for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new registration statement relating to the Securities offered therein, and the offering of such Securities at that time shall be deemed to be the initial bona fide offering thereof. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Boston, and Commonwealth of Massachusetts, on the 16th day of November, 1998. BANKBOSTON CORPORATION /s/ GARY A. SPIESS By: _________________________________ (GARY A. SPIESS) (GENERAL COUNSEL AND CLERK) Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- CHARLES K. GIFFORD* Chairman and Chief November 16, 1998 ______________________________________ Executive Officer (CHARLES K. GIFFORD) (Chief Executive Officer) HENRIQUE DE CAMPOS MEIRELLES* President and Chief November 16, 1998 ______________________________________ Operating Officer and (HENRIQUE DE CAMPOS MEIRELLES) Director SUSANNAH M. SWIHART* Vice Chairman, Chief November 16, 1998 ______________________________________ Financial Officer and (SUSANNAH M. SWIHART) Treasurer (Chief Financial Officer) ROBERT T. JEFFERSON* Comptroller November 16, 1998 ______________________________________ (Chief Accounting (ROBERT T. JEFFERSON) Officer)
II-4
SIGNATURE TITLE DATE --------- ----- ---- WAYNE A. BUDD* Director November 16, 1998 ______________________________________ (WAYNE A. BUDD) WILLIAM F. CONNELL* Director November 16, 1998 ______________________________________ (WILLIAM F. CONNELL) GARY L. COUNTRYMAN* Director November 16, 1998 ______________________________________ (GARY L. COUNTRYMAN) WILLIAM M. CROZIER, JR.* Director November 16, 1998 ______________________________________ (WILLIAM M. CROZIER, JR.) ALICE F. EMERSON* Director November 16, 1998 ______________________________________ (ALICE F. EMERSON) THOMAS J. MAY* Director November 16, 1998 ______________________________________ (THOMAS J. MAY) DONALD F. MCHENRY* Director November 16, 1998 ______________________________________ (DONALD F. MCHENRY) PAUL C. O'BRIEN* Director November 16, 1998 ______________________________________ (PAUL C. O'BRIEN) THOMAS R. PIPER* Director November 16, 1998 ______________________________________ (THOMAS R. PIPER) FRANCENE S. RODGERS* Director November 16, 1998 ______________________________________ (FRANCENE S. RODGERS) JOHN W. ROWE* Director November 16, 1998 ______________________________________ (JOHN W. ROWE) GLEN P. STREHLE* Director November 16, 1998 ______________________________________ (GLEN P. STREHLE) WILLIAM C. VAN FAASEN* Director November 16, 1998 ______________________________________ (WILLIAM C. VAN FAASEN) THOMAS B. WHEELER* Director November 16, 1998 ______________________________________ (THOMAS B. WHEELER) ALFRED M. ZEIEN* Director November 16, 1998 ______________________________________ (ALFRED M. ZEIEN) /s/ GARY A. SPIESS *By: _________________________________ (GARY A. SPIESS) (ATTORNEY IN FACT)
II-5 EXHIBIT INDEX (1)(a) --Form of Underwriting Agreement relating to the Securities. (4)(c) --Senior Indenture, between the Corporation and Norwest Bank Minnesota, National Association ("Norwest"), as Trustee, dated as of June 15, 1992, incorporated herein by reference to Exhibit 4(c) to the Corporation's Registration Statement on Form S-3 (Registration Number 33-48418). (4)(d) --Subordinated Indenture between the Corporation and Norwest, as Trustee, dated as of June 15, 1992, incorporated herein by reference to Exhibit 4(d) to the Corporation's Registration Statement on Form S-3 (Registration Number 33-48418). (4)(e) --First Supplemental Indenture between the Corporation and Norwest, as Trustee dated as of June 24, 1993, incorporated herein by reference to Exhibit 4(e) to the Corporation's Current Report on Form 8-K dated June 24, 1993 (File No. 1-6522). (4)(f) --Form of Securities Warrant Agreement. (4)(g) --Form of Certificates representing the Debt Warrants, Preferred Stock Warrants and Common Stock Warrants (included in Exhibit (4)(f)). (4)(h) --Form of Deposit Agreement. (4)(I) --Form of Depositary Receipt (included in Exhibit (4)(h)). (4)(j) --Rights Agreement, dated as of June 28, 1990, and as amended through December 12, 1995, between the Corporation and the Bank, as Rights Agent, and the description of the Rights, incorporated herein by reference to the Corporation's registration statement on Form 8-A relating to the Rights and to Exhibit 1 of such registration statement (File No. 1-6522) and Exhibit 4(g) to the Corporation's Annual Report on Form 10-K for the year ended December 31, 1996 (File No. 1-6522). (5) --Opinion of Gary A. Spiess, Esq. (12)(a) --Computation of the Corporation's Consolidated Ratio of Earnings to Fixed Charges (excluding interest on deposits) incorporated herein by reference to Exhibit 12(a) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998. (12)(b) --Computation of the Corporation's Consolidated Ratio of Earnings to Fixed Charges (including interest on deposits) incorporated herein by reference to Exhibit 12(b) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998. (12)(c) --Computation of the Corporation's Consolidated Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividend Requirements (excluding interest on deposits) incorporated herein by reference to Exhibit 12(c) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998. (12)(d) --Computation of the Corporation's Consolidated Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividend Requirements (including interest on deposits) incorporated herein by reference to Exhibit 12(d) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998. (23)(a) --Consent of PricewaterhouseCoopers LLP (23)(b) --Consent of Gary A. Spiess, Esq. (included in Exhibit 5). (24) --Power of Attorney of certain officers and directors. (25) --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Norwest, as Trustee.
EX-1.A 2 FORM OF UNDERWRITING AGREEMENT ================================================================================ BANKBOSTON CORPORATION (a Massachusetts corporation) Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares Representing Preferred Stock, Common Stock and Warrants to Purchase Debt Securities, Preferred Stock or Common Stock UNDERWRITING AGREEMENT Dated: ____________, 199_ ================================================================================ 1 BANKBOSTON CORPORATION (a Massachusetts corporation) Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares representing Preferred Stock, Common Stock and Warrants to Purchase Debt Securities, Preferred Stock or Common Stock UNDERWRITING AGREEMENT ___________, 199_ To the [Underwriter[s] named in Exhibit A] [Representative[s] named in Exhibit A of the Underwriters named in Exhibit A] Dear Sirs: BankBoston Corporation, a Massachusetts corporation (the "Company"), proposes to issue and sell from time to time, either together or separately, certain of its (i) senior debt securities (the "Senior Debt Securities") and/or (ii) subordinated debt securities (the "Subordinated Debt Securities", and together with the Senior Debt Securities, the "Debt Securities"), and/or (iii) preferred stock (the "Preferred Shares"), and/or (iv) depositary shares which represent fractional interests in the Preferred Shares (the "Depositary Shares") and/or (v) common stock, par value $1.00 per share ("Common Stock"), and/or (vi) warrants (the "Warrants") to purchase Debt Securities, Preferred Shares or Common Stock in one or more offerings on terms determined at the time of sale and set forth in a terms agreement in the form of Exhibit A hereto (the "Terms Agreement"). The Subordinated Debt Securities may be convertible into or exchangeable for Capital Securities of the Company (as defined below) and the Preferred Shares may be convertible into Capital Securities or other preferred stock of the Company or exchangeable for Capital Securities or Debt Securities, in each case as set forth in the applicable Terms Agreement relating thereto. As used herein, "Capital Securities" means any securities issued by the Company 2 which consist of (i) Common Stock, (ii) perpetual preferred stock or (iii) other capital securities of the Company acceptable to the Company's primary federal regulator. Capital Securities may have such terms, rights and preferences as may be determined by the Company. The Senior Debt Securities are to be issued under an Indenture dated as of June 15, 1992, as amended or supplemented (the "Senior Indenture"), between the Company and Norwest Bank Minnesota, National Association ("Norwest"), as trustee (the "Senior Trustee"). The Subordinated Debt Securities are to be issued under an Indenture dated as of June 15, 1992, as amended or supplemented (the "Subordinated Indenture"), between the Company and Norwest, as trustee (the "Subordinated Trustee", and together with the Senior Trustee, the "Trustees"). The Senior Indenture and the Subordinated Indenture are collectively referred to herein as the "Indentures". The Senior Debt Securities and the Subordinated Debt Securities may have varying designations, maturities, rates and times of payment of interest, if any, selling prices, redemption terms, if any, exchange terms, if any, conversion terms and other specific terms as set forth in the applicable Terms Agreement relating thereto. The warrants are to be issued under warrant agreements (each a "Warrant Agreement"), between the Company and a bank or trust company, as warrant agent (the "Warrant Agent"). The Warrants may have varying designations, expiration dates, selling prices, redemption terms, if any, exchange terms, if any, conversion terms and other specific terms as set forth in the applicable Terms Agreement relating thereto. Each issue of Preferred Shares may vary as to the specific number of shares, title, stated value and liquidation preference, issuance price, dividend rate or rates (or method of calculation), dividend payment dates, redemption or sinking fund requirements, conversion and exchange provisions and any other variable terms as set forth in the applicable Terms Agreement relating to such Preferred Shares. If the Preferred Shares are to be offered in the form of Depositary Shares, the Preferred Shares will, when issued, be deposited by the Company against delivery of depositary receipts (the "Depositary Receipts") to be issued under a deposit agreement (the "Deposit Agreement"), to be entered into among the Company, a depositary institution (the "Depositary") and the holders from time to time of the Depositary Receipts issued thereunder. The Depositary Receipts will evidence the Depositary Shares and each Depositary Share will represent a fraction of a Preferred Share. The Preferred Shares, together, if applicable, with the Depositary Shares are hereinafter referred to as the "Shares". 3 Each issue of Common Stock may vary as to the specific number of shares, the initial public offering price, the purchase price and other specific terms as set forth in the applicable Terms Agreement relating thereto. The Debt Securities, Warrants, Shares and Common Stock, to be issued and sold as specified in the applicable Terms Agreement, shall collectively be referred to herein as the "Offered Securities". As used herein, unless the context otherwise requires, the term "Underwriters" shall mean the firm or firms specified as Underwriter or Underwriters in the applicable Terms Agreement relating to the Offered Securities and the term "you" shall mean the Underwriter or Underwriters, if no underwriting syndicate is purchasing the Offered Securities, or the representative or representatives of the Underwriters, if an underwriting syndicate is purchasing the Offered Securities, as specified in the applicable Terms Agreement. Whenever the Company determines to make an offering of Offered Securities, the Company will enter into a Terms Agreement providing for the sale of the applicable Offered Securities to, and the purchase and offering thereof by, the Underwriters. The Terms Agreement relating to the Offered Securities shall specify the type of Offered Securities to be issued, the names of the Underwriters participating in such offering (subject to substitution as provided in Section 10 hereof), the number of Offered Securities which each such Underwriter severally agrees to purchase, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the time and place of delivery and payment and other specific terms. In addition, each Terms Agreement shall specify whether the Company has agreed to grant to the Underwriters an option to purchase additional Offered Securities to cover over-allotments, if any, and the amount of Offered Securities subject to such option (the "Option Securities"). As used herein, the term "Offered Securities" shall include the Option Securities, if any. The Terms Agreement may take the form of an exchange of any standard form of written telecommunication between you and the Company. Each offering of Offered Securities will be governed by this Agreement, as supplemented by the applicable Terms Agreement, and this Agreement and such Terms Agreement shall inure to the benefit of and be binding upon the Company and each Underwriter participating in the offering of such Offered Securities. The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (File No. 333- ), including a prospectus, relating to the Offered Securities and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 4 1933, as amended (the "1933 Act"). Such registration statement has been declared effective by the Commission. As provided in Section 3(a), a prospectus supplement reflecting the terms of the Offered Securities, the terms of the offering thereof and the other matters set forth therein has been prepared and will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus supplement, in the form first filed after the date of the applicable Terms Agreement pursuant to Rule 424, is herein referred to as the "Prospectus Supplement". Such registration statement, as amended at the date of the applicable Terms Agreement, including the exhibits thereto and the documents incorporated by reference therein, is herein called the "Registration Statement", and the basic prospectus included therein relating to all offerings of securities under the Registration Statement, as supplemented by the Prospectus Supplement, is herein called the "Prospectus", except that, if such basic prospectus is amended or supplemented on or prior to the date on which the Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus as so amended or supplemented and as supplemented by the Prospectus Supplement, in either case including the documents filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by reference therein. Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and warrants to and agrees with each of the Underwriters that: (i) The Company meets the requirements for use of Form S-3 under the 1933 Act and 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 Supplement and any amendment thereto, (A) the Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the 1933 Act and the rules and regulations of the Commission thereunder (the "1933 Act Regulations"), the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations"); (B) neither the Registration Statement nor any amendment or supplement thereto contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (C) neither the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in 5 the light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through you expressly for use in the Registration Statement or the Prospectus. At the Closing Time, the Indentures will comply in all material respects with the requirements of the 1939 Act and the 1939 Act Regulations. (ii) The documents incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act, and the rules and regulations of the Commission thereunder (the "1934 Act Regulations") and, when read together and with the other information in the Prospectus, as of the applicable effective date of the Registration Statement and any amendment thereto, did not 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 in order to make the statements therein not misleading. (iii) This Agreement has been duly authorized, executed and delivered by the Company; and upon execution and delivery of each Terms Agreement by the Company, such Terms Agreement shall have been duly authorized, executed and delivered by the Company. (iv) The consolidated financial statements included or incorporated by reference in the Registration Statement present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the consolidated results of operations and cash flows of the Company and its subsidiaries for the periods specified. Such financial statements have bee prepared in conformity with generally accepted accounting principles applies on a consistent basis throughout the periods involved, except as disclosed in the notes to such financial statements. The financial statement schedules, if any, included in the Registration Statement present fairly the information required to be the Registration Statement present fairly the information required to be stated therein. The selected financial data included in the Prospectus present fairly the information shown therein and have been complied on a basis consistent with* that of the audited consolidated financial statements included or incorporated by reference in the Registration Statement. 6 (v) The Company is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts with corporate power and authority under such laws to own, lease and operate its properties and conduct its business as described in the Prospectus; the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; BankBoston, N.A. ("FNBB") is a duly organized and validly existing national banking association under the laws of the United States, continues to hold a valid certificate to do business as such and has full power and authority to conduct its business as such (FNBB is referred to as the "Significant Subsidiary"); the Significant Subsidiary has the authority under its jurisdiction of organization to own, lease and operate its properties and to conduct its business. (vi) The Company is duly qualified as a foreign corporation, and the Significant Subsidiary is duly authorized, to transact business and is in good standing in each jurisdiction in which it owns or leases property of a nature, or transacts business of a type, that would make such qualification necessary, except to the extent that the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise. (vii) The Company does not have any subsidiaries which are material to its business, except to the extent that the Significant Subsidiary may be deemed to be so material. (viii) The Offered Securities conform in all material respects to the summary descriptions thereof contained or incorporated by reference in the Prospectus and such summary descriptions conform to the rights set forth in the instruments defining the same. (ix) If the Prospectus contains a description of the capitalization of the Company, (a) the Company had at the date indicated a duly authorized and outstanding capitalization as set forth in the Prospectus, (b) all of the outstanding shares of Capital Securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and (c) none of the outstanding shares of Capital Securities was issued in violation of the preemptive rights of any stockholder of the Company. (x) If the Offered Securities include Preferred Shares, such Preferred Shares shall, on the date of the Terms Agreement relating to such Offered Securities, be duly authorized and, when such Preferred Shares are duly executed and delivered and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Preferred Shares will have been validly issued, fully paid and non-assessable; subject to the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof will be subject to personal liability by reason of being such a holder; such Preferred Shares will not be subject to the.preemptive rights of any stockholder of the Company; and all corporate action required to be taken for the authorization, issue and sale of such Preferred Shares has been, or at the Closing Time will be, validly and sufficiently taken; and, if the Offered Securities include Preferred Shares that are to be represented by Depositary Shares, then, upon deposit by the Company of such Preferred Shares with the Depositary pursuant to the Deposit Agreement and the execution by the Depositary of the Depositary Receipts evidencing the Depositary Shares, such Depositary Shares shall represent legal and valid interests in such Preferred Shares; and, if the Offered Securities include Preferred Shares that are convertible into Capital Securities or other preferred stock or exchangeable for Capital Securities or Debt Securities, then such Preferred Shares shall be convertible into Capital Securities or other preferred stock or exchangeable for Capital Securities or Debt Securities in accordance with their terms and the terms of the Certificate of Vote of Directors establishing a Series of a Class of Stock relating to such Preferred Shares (the "Certificate of Vote"). (xi) If the Offered Securities include Common Stock, such Common Stock shall, on the date of the Terms Agreement relating to such Offered Securities, be duly authorized and, when such Common Stock is duly executed and delivered and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Common Stock will have been validly issued, fully paid and non-assessable; subject to the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof will be subject to personal liability by reason of being such a holder; such Common Stock will not be subject to the preemptive rights of any stockholder of the Company; and all corporate action required to be taken for the authorization, issue and sale of such Common Stock has been, or at the Closing Time will be, validly and sufficiently taken. 7 (xii) If the Offered Securities include Debt Securities, such Debt Securities shall, on the date of the Terms Agreement relating to such Offered Securities, be duly authorized and, when such Debt Securities are duly executed, authenticated and delivered in the manner provided for in the applicable Indenture and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Debt Securities will constitute valid and binding obligations of the Company entitled to the benefits of the applicable Indenture and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies; and, if the Offered Securities include Subordinated Debt Securities that are convertible into or exchangeable for Capital Securities, then such Subordinated Debt Securities shall be convertible into or exchangeable for Capital Securities in accordance with their terms and the terms of the Subordinated Indenture. (xiii) If the Offered Securities include Warrants, such Warrants shall, on the date of the Terms Agreement relating to such Offered Securities, be duly authorized and, when such Warrants are duly executed, countersigned and delivered in the manner provided for in the Warrant Agreement and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Warrants will constitute valid and binding obligations of the Company entitled to the benefits of the Warrant Agreement and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies; and the Warrants shall be exercisable for Debt Securities, Preferred Shares or Common Stock in accordance with their terms and the terms of the Warrant Agreement. 8 (xiv) If the Offered Securities include Preferred Shares convertible into Capital Securities or other preferred stock or exchangeable for Capital Securities and/or Subordinated Debt Securities convertible into or exchangeable for Capital Securities, the Capital Securities or preferred stock issuable upon conversion or exchange, as the case may be, of the Preferred Shares pursuant to their terms and the terms of the Certificate of Vote and/or the Capital Securities issuable upon conversion or exchange of the Subordinated Debt Securities pursuant to their terms and the terms of the Subordinated Indenture, on the date of the Terms Agreement relating to such Offered Securities, shall be duly authorized and validly reserved for issuance upon such conversion or exchange by all necessary corporate action and such Capital Securities or other preferred stock, when issued upon such conversion or exchange, as the case may be, will be validly issued, fully paid and non-assessable; subject to the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof will be subject to personal liability by reason of being such a holder; and the issuance of such Capital Securities or other preferred stock upon such conversion or exchange, as the case may be, will not be subject to preemptive rights. (xv) If the Offered Securities include Debt Securities or Preferred Shares exchangeable for Debt Securities, the Indentures have been duly authorized by the Company, will be substantially in the forms filed as exhibits to the Registration Statement and, when duly executed and delivered by the Company and the Trustees, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies; and the summary descriptions of the Indentures set forth in the Prospectus conform in all material respects to the provisions contained in the Indentures. (xvi) If the Offered Securities include Depositary Shares, the Deposit Agreement has been duly authorized by the Company, will be substantially in the form filed as an exhibit to the Registration Statement and, when duly 9 executed and delivered by the Company and the Depositary, will constitute a valid and binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies; and the summary description of the Deposit Agreement set forth in the Prospectus conforms in all material respects to the provisions contained in the Deposit Agreement. (xvii) If the Offered Securities include Warrants, the Warrant Agreement has been duly authorized by the Company, will be substantially in the form filed as an exhibit to the Registration Statement and, when duly executed and delivered by the Company and the Warrant Agent, will constitute a valid and binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies; and the summary description of the Warrant Agreement conforms in all material respects to the provisions contained in the Warrant Agreement. (xviii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein or contemplated thereby and, except for normal recurring dividends on the Common Stock and the Preferred Shares of the Company, there has not been (A) any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, (B) any transaction entered into by the Company or any subsidiary, other than in the ordinary course of business, that is material to the Company and its subsidiaries, considered as one enterprise, or (C) any dividend or distribution of any 10 kind declared, paid or made by the Company on its capital stock. (xix) Neither the Company nor the Significant Subsidiary is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound or to which any of its properties may be subject, except for such defaults that would not have a material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise. The execution and delivery of this Agreement, the applicable Terms Agreement, the Indentures, the Warrant Agreement, any Certificate of Vote and the Deposit Agreement by the Company, the issuance and delivery of the Offered Securities, the consummation by the Company of the transactions contemplated in this Agreement, the applicable Terms Agreement and in the Registration Statement, and compliance by the Company with the terms of this Agreement, the applicable Terms Agreement, the Indentures, the Warrant Agreement, any Certificate of Vote and the Deposit Agreement have been duly authorized by all necessary corporate action on the part of the Company and do not and will not result in any violation of the charter or by-laws of the Company or the Significant Subsidiary, and do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Significant Subsidiary under (A) any indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or the Significant Subsidiary is a party or by which it may be bound or to which any of its properties may be subject except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not have a material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise or (B) any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or the Significant Subsidiary or any of its properties. (xx) Each authorization, approval, consent or license of any government, governmental instrumentality or court, domestic or foreign 11 (other than under the 1933 Act, the 1939 Act and the securities or blue sky laws of the various states), which is required for (A) the valid authorization, issuance, sale and delivery of the Offered Securities or (B) the execution, delivery or performance of this Agreement, the applicable Terms Agreement, the Indentures, the Warrant Agreement, any Certificate of Vote or the Deposit Agreement by the Company has been received. (xxi) Except as disclosed in the Prospectus, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of the Company, threatened against or affecting the Company or any Significant Subsidiary that is required to be disclosed in the Prospectus or that, in the final outcome, could, in the judgment of the Company, result in any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, or that could materially and adversely affect the properties or assets of the Company and its subsidiaries, considered as one enterprise, or that could adversely affect the consummation of the transactions contemplated in this Agreement; the aggregate liability or loss, if any, resulting from the final outcome of all pending legal or governmental proceedings to which the Company or any Significant Subsidiary is a party or which affect any of its properties that are not described in the Prospectus, including ordinary routine litigation incidental to its business, would not have a material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise. (xxii) There are no contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required. (xxiii) The Company and the Significant Subsidiaries each has good and marketable title to all properties and assets described in the Prospectus as owned by it, free and clear of all liens, charges, encumbrances or restrictions, except such as (A) are described in the Prospectus or (B) are neither material in amount nor materially significant in relation to the business of the Company and its subsidiaries, considered as one enterprise; all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and 12 under which the Company or the Significant Subsidiary holds properties described in the Prospectus, are in full force and effect, and neither the Company nor the Significant Subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or the Significant Subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of such corporation to the continued possession of the leased or subleased premises under any such lease or sublease. (xxiv) The Company and the Significant Subsidiaries each owns, possesses or has obtained all material governmental licenses, permits, certificates, consents, orders, approvals and other authorizations necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as presently conducted, and neither the Company nor the Significant Subsidiary has received any notice of proceedings relating to revocation or modification of any such licenses, permits, certificates, consents, orders, approvals or authorizations that, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could materially adversely affect the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise. (xxv) The Company and the Significant Subsidiaries each owns or possesses, or can acquire on reasonable terms, adequate patents, patent licenses, trademarks, service marks and trade names necessary to carry on their businesses as presently conducted, and neither the Company nor any of the Significant Subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any patents, patent licenses, trademarks, service marks or trade names that, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could materially adversely affect the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise. (xxvi) To the best knowledge of the Company, no labor problem exists with its employees or with employees of the Significant Subsidiaries or is imminent that could adversely affect the Company and its subsidiaries, considered as one enterprise, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or the Significant Subsidiaries' principal suppliers, contractors or customers that could be expected to materially adversely affect the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise. (xxvii) The Company has not taken and will not take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Offered Securities or the Capital Securities. (b) Any certificate signed by any duly authorized officer of the Company or the Significant Subsidiary and delivered to you or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby. Section 2. PURCHASE AND SALE. (a) The several commitments of the Underwriters to purchase Offered Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth. (b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company may grant, if so provided in the Terms Agreement applicable to any Offered Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the amount of Option Securities set forth therein at the same price per security (less, in the case of Common Stock, an amount per share equal to any dividends declared by the Company and payable on the Offered Securities but not payable on the Option Securities) as is applicable to the Offered Securities. Such option, if granted, will expire 30 days after the date of the Terms Agreement applicable to the Offered Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Offered Securities upon notice by you to the Company setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a "Date of Delivery") shall be determined by you, but shall not be later than seven full business days and not earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined, unless otherwise agreed upon by you and the Company. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally 13 and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Offered Securities each such Underwriter has agreed to purchase, as set forth in the applicable Terms Agreement, bears to the total number of Offered Securities, subject to such adjustments as you in your discretion shall make to eliminate any sales or purchases of fractional shares. (c) Payment of the purchase price for, and delivery of, any Offered Securities to be purchased by the Underwriters pursuant to the applicable Terms Agreement shall be made at the office of BankBoston, N.A., 100 Federal Street, Boston, Massachusetts 02110 or at such other place as shall be agreed upon by you and the Company in the applicable Terms Agreement, at 10:00 A.M., New York City time, on the fifth business day (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by you and the Company (each such time and date being referred to as a "Closing Time"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates representing such Option Securities, shall be made at the above-mentioned offices of BankBoston, N.A., or at such other place as shall be agreed upon by you and the Company, on each Date of Delivery as specified in the notice from you to the Company. Payment shall be made to the Company by certified or official bank check or checks in New York Clearing House or similar next day funds payable to the order of the Company against delivery to you for the respective accounts of the Underwriters of the Offered Securities to be purchased by them. Such Offered Securities, certificates for such Offered Securities or Depositary Receipts evidencing the Depositary Shares, as applicable, shall be in such denominations and registered in such names as you may request in writing at least two full business days prior to the applicable Closing Time or Date of Delivery, as the case may be. Such Offered Securities, certificates or Depositary Receipts, as applicable, will be made available for examination and packaging by you not later than 10:00 A.M. on the business day prior to Closing Time or Date of Delivery, as the case may be. Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with each Underwriter as follows: (a) (i) If reasonably requested by you in connection with the offering of the Offered Securities, the Company will prepare a preliminary prospectus supplement containing such information concerning the Offered Securities as you and the Company deem appropriate and (ii) immediately following the execution of each Terms Agreement, the Company will prepare a Prospectus Supplement 14 that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the number or principal amount of Offered Securities covered thereby, the names of the Underwriters participating in the offering and the number or principal amount of Offered Securities which each Underwriter severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information concerning the Offered Securities as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any preliminary prospectus supplement, the Prospectus and the Prospectus Supplement as you shall reasonably request. (b) If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements. (c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act. (d) During the period between the date of the applicable Terms Agreement and the Closing Time, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the 15 Prospectus, will furnish you with copies of any such amendment, supplement or other document and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably object. (e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. (f) The Company has furnished or will furnish to you as many copies of the Registration Statement as originally filed and of all amendments thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act) and copies of all consents and certificates of experts as you may reasonably request, and has furnished or will furnish to you, for each other Underwriter, one copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits). (g) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Offered Securities and, if applicable, Capital Securities into or for which the Subordinated Debt Securities are convertible or exchangeable and the Capital Securities, other preferred stock or Debt Securities into which the Preferred Shares are convertible or exchangeable, as the case may be, for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate 16 and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Terms Agreement applicable to such Offered Securities; PROVIDED, HOWEVER, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Offered Securities have been qualified as above provided. (h) The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering (i) a period of 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date and (ii) a period of 12 months beginning after the date of the applicable Terms Agreement but not later than the first day of the Company's fiscal quarter next following the date of the applicable Terms Agreement. (i) If and to the extent specified in the applicable Terms Agreement, the Company will use its best efforts to effect the listing of the Offered Securities and, if applicable, the Capital Securities, other preferred stock or Debt Securities issuable upon conversion of or exchange for, as the case may be, Preferred Shares and/or Capital Securities issuable upon conversion of or exchange for Subordinated Debt Securities, on the New York Stock Exchange and the Boston Stock Exchange by the Closing Time with respect to the applicable Terms Agreement. (j) For a period of five years after the Closing Time, the Company will furnish to you copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to its stockholders generally. (k) Between the date of the applicable Terms Agreement and the Closing Time or such other date as is set forth in such Terms Agreement, the Company will not, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, the securities set forth in such Terms Agreement, other than as set forth in such Terms Agreement. 17 Section 4. PAYMENT OF EXPENSES. The Company will pay and bear all costs and expenses incident to the performance of its obligations under this Agreement and any applicable Terms Agreement, including (a) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits), as originally filed and as amended, any preliminary prospectus supplements and the Prospectus and any amendments or supplements thereto, and the cost of furnishing copies thereof to the Underwriters, (b) the preparation, printing and distribution of this Agreement, each Terms Agreement, the Indentures, the Deposit Agreement, the Warrant Agreement, any Certificate of Vote, the Offered Securities, any certificates for the Offered Securities and Depositary Receipts, (c) the issuance and delivery of the Offered Securities to the Underwriters, (d) the fees and disbursements of the Company's counsel and accountants, (e) the qualification of the Offered Securities under the applicable securities laws in accordance with Section 3(g) and any filing for review of the offering with the National Association of Securities Dealers, Inc., including filing fees and fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the Blue Sky Survey and the Legal Investment Survey, (f) any fees charged by rating agencies for rating any of the Offered Securities and (g) the fees and expenses incurred in connection with the listing of the applicable Offered Securities and the Capital Securities, other preferred stock or Debt Securities issuable upon conversion or exchange thereof. If a Terms Agreement is terminated by you in accordance with the provisions of Section 5 or Section 9(i) hereof, the Company shall reimburse the Underwriters named in such Terms Agreement for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for such Underwriters. Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. Except as otherwise provided in the applicable Terms Agreement, the obligations of the Underwriters to purchase and pay for the Offered Securities pursuant to any Terms Agreement are subject to the accuracy of the representations and warranties of the Company contained herein at and as of the date hereof, the date of any such Terms Agreement, and the Closing Time or contained in certificates of any officer of the Company or the Significant Subsidiary delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following further conditions: (a) At the Closing Time, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall be pending or, to your 18 knowledge or the knowledge of the Company, shall be contemplated by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters. (b) At the applicable Closing Time, you shall have received a signed opinion of Gary A. Spiess, General Counsel for the Company, dated as of the Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance satisfactory to you or your counsel, to the effect that: (i) The Company is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts with corporate power and authority under such laws to own, lease and operate its properties and conduct its business as described in the Prospectus. (ii) The Company is duly qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which it owns or leases property of a nature, or transacts business of a type, that would make such qualification necessary, except to the extent that the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise. (iii) FNBB is a duly organized and validly existing national banking association under the laws of the United States, continues to hold a valid certificate to do business as such and has full power and authority to conduct its business as such; and the Significant Subsidiary has the authority under its jurisdiction of organization to own, lease and operate its properties and to conduct its business. (iv) The Significant Subsidiary is duly authorized to transact business and is in good standing in each jurisdiction in which it owns or leases property of a nature, or transacts business of a type, that would make such qualification necessary, except to the extent that the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise. (v) The Company is duly registered under the Bank Holding Company Act of l956, as amended; and the Significant Subsidiary is duly authorized to conduct such banking business in each jurisdiction in which its banking business is 19 conducted. (vi) If the Prospectus contains a description of the capitalization of the Company, (a) the Company had at the date indicated a duly authorized and outstanding capitalization as set forth in the Prospectus, (b) all of the outstanding shares of Capital Securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and (c) none of the outstanding shares of Capital Securities was issued in violation of the preemptive rights of any stockholder of the Company. (vii) The Offered Securities conform in all material respects as to legal matters to the description thereof contained or incorporated by reference in the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same. (viii) All of the outstanding shares of capital stock of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable; except for directors' qualifying shares, all of such shares are owned by the Company, directly or through one or more subsidiaries, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind; and none of such shares was issued in violation of the preemptive rights of any stockholder of the Significant Subsidiaries. (ix) If the Offered Securities include Preferred Shares, such Preferred Shares have been duly authorized and, when such Preferred Shares are duly executed and delivered and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Preferred Shares will have been validly issued, fully paid and non-assessable; subject to the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof will be subject to personal liability by reason of being such a holder; such Preferred Shares will not be subject to the preemptive rights of any stockholder of the Company; and all corporate action required to be taken for the authorization, issue and sale of such Preferred Shares has been validly and sufficiently taken; and, if the Offered Securities include Preferred Shares that are to be represented by Depositary Shares, then, upon deposit by the Company of such Preferred Shares with the Depositary pursuant to the Deposit Agreement and the execution by the Depositary of the Depositary Receipts evidencing the Depositary Shares, such Depositary Shares shall represent 20 legal and valid interests in such Preferred Shares; and, if the Offered Securities include Preferred Shares that are convertible into Capital Securities or other preferred stock or exchangeable for Capital Securities or Debt Securities, then such Preferred Shares are convertible into Capital Securities or other preferred stock or exchangeable for Capital Securities or Debt Securities in accordance with their terms and the terms of the Certificate of Vote. (x) If the Offered Securities include Common Stock, such Common Stock shall, on the date of the Terms Agreement relating to such Offered Securities, be duly authorized and, when such Common Stock is duly executed and delivered and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Common Stock will have been validly issued, fully paid and non-assessable; subject to the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof will be subject to personal liability by reason of being such a holder; such Common Stock will not be subject to the preemptive rights of any stockholder of the Company; and all corporate action required to be taken for the authorization, issue and sale of such Common Stock has been, or at the Closing Time will be, validly and sufficiently taken. (xi) If the Offered Securities include Debt Securities, such Debt Securities have been duly authorized and, when such Debt Securities are duly executed, authenticated and delivered in the manner provided for in the applicable Indenture and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Debt Securities will constitute valid and binding obligations of the Company entitled to the benefits of the applicable Indenture and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies; and, if the Offered Securities include Subordinated Debt Securities that are convertible into of exchangeable for Capital Securities, then such Subordinated Debt Securities are convertible into or exchangeable for Capital Securities in accordance with their terms and the terms of the Subordinated Indenture. 21 (xii) If the Offered Securities include Warrants, such Warrants have been duly authorized and, when such Warrants are duly executed, authenticated and delivered in the manner provided for in the Warrant Agreement and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Warrants will constitute valid and binding obligations of the Company entitled to the benefits of the Warrant Agreement and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies; and the Warrants are exercisable for Debt Securities, Preferred Shares or Common Stock in accordance with their terms and the terms of the Warrant Agreement. (xiii) If the Offered Securities include Preferred Shares convertible into Capital Securities or other preferred stock or exchangeable for Capital Securities and/or Subordinated Debt Securities convertible into or exchangeable for Capital Securities, the Capital Securities or other preferred stock issuable upon conversion or exchange, as the case may be, of the Preferred Shares pursuant to their terms and the terms of the Certificate of Vote and/or the Capital Securities issuable upon conversion of or exchange for the Subordinated Debt Securities pursuant to their terms and the terms of the Subordinated Indenture, have been duly authorized and validly reserved for issuance upon such conversion by all necessary corporate action and such Capital Securities or other preferred stock, when issued upon such conversion, will be validly issued, fully paid and non- assessable; subject to provisions of Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof will be subject to personal liability by reason of being such a holder; and the issuance of such Capital Securities or other preferred stock upon such conversion or exchange, as the case may be, will not be subject to preemptive rights. (xiv) If the Offered Securities include Debt Securities or Preferred Shares exchangeable for Debt Securities, the applicable Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the applicable Trustee, 22 constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies; and the Indenture has been duly qualified under the 1939 Act. (xv) If the Offered Securities include Depositary Shares, the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Depositary, constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors' rights or by general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies. (xvi) If the Offered Securities include Warrants, the Warrant Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Warrant Agent, constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies. (xvii) This Agreement and the applicable Terms Agreement have been duly authorized, executed and delivered by the Company. (xviii) Each authorization, approval, consent or license of any government, governmental instrumentality or court, 23 domestic or foreign (other than under the 1933 Act, the 1939 Act and the securities or blue sky laws of the various states), which is required for (A) the valid authorization, issuance, sale and delivery of the Offered Securities or (B) the execution, delivery or performance of this Agreement, the applicable Terms Agreement, the applicable Indenture, the Warrant Agreement, any Certificate of Vote or the Deposit Agreement, as applicable, by the Company has been received. (xix) Such counsel does not know of any statutes or regulations, or any pending or threatened legal or governmental proceedings, required to be described in the Prospectus that are not described as required, nor of any contracts or documents of a character required to be described or referred to in the Prospectus or to be filed as exhibits to the Registration Statement that are not described, referred to or filed as required. (xx) The descriptions in the Prospectus of the statutes, regulations, legal or governmental proceedings, contracts and other documents therein described are accurate and fairly discuss in all material respects the information required to be shown. (xxi) Except with respect to undertakings or agreements with bank regulatory authorities, the disclosure with respect to which is addressed in clause (xxv) below, to the knowledge of such counsel, no default exists in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Prospectus or filed as an exhibit to the Registration Statement. (xxii) The execution and delivery of this Agreement, the applicable Terms Agreement, the applicable Indenture, the Warrant Agreement, any Certificate of Vote and the Deposit Agreement, as applicable, by the Company, the issuance and delivery of the Offered Securities and the consummation by the Company of the transactions contemplated in this Agreement, the applicable Terms Agreement and in the Registration Statement and compliance by the Company with the terms of this Agreement, the applicable Terms Agreement, the applicable Indenture, the Warrant Agreement, any Certificate of Vote and the Deposit Agreement, as applicable, do not and will not result in any violation of the charter or by-laws of the Company or the Significant Subsidiary, and do not and will not conflict with, or result 24 in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary under (A) any indenture, mortgage or loan agreement, or any other agreement or instrument known to such counsel, to which the Company or the Significant Subsidiary is a party or by which it may be bound or to which any of its properties may be subject (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not have a material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise), (B) any existing applicable law, rule or regulation (other than the securities or blue sky laws of the various states, as to which such counsel need express no opinion), or (C) any judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or the Significant Subsidiary or any of its properties. (xxiii) The Registration Statement is effective under the 1933 Act, and to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated under the 1933 Act. (xxiv) The Registration Statement and the Prospectus, excluding the documents incorporated by reference therein, and each amendment or supplement thereto (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which such counsel need express no opinion), as of their respective effective or issue dates and as of the date of the applicable Terms Agreement, appear on their face to have been appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations. (xxv) The documents incorporated by reference in the Prospectus (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which such counsel need express no opinion, and except to the extent that any statement therein is modified or superseded in the Prospectus), as of the dates they were filed with the Commission and as of the date of the applicable Terms Agreement, appear on their face to have been appropriately responsive in all material respects to 25 the requirements of the 1934 Act and the 1934 Act Regulations. (xxvi) Such counsel has participated in the preparation of the Registration Statement and the Prospectus and is familiar with or has participated in the preparation of the documents incorporated by reference therein and no facts have come to the attention of such counsel to lead him to believe (A) that the Registration Statement or any amendment thereto (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which such counsel need express no opinion), on the original effective date of the Registration Statement, on the effective date of the most recent post-effective amendment thereto, if any, on the date of the filing of any annual report on Form 10-K after the filing of the Registration Statement, on the date of this Agreement, on the date of the applicable Terms Agreement, on the date any such amendment became effective after the date of this Agreement or the date of the applicable Terms Agreement, 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 (B) that the Prospectus or any amendment or supplement thereto (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which such counsel need express no opinion), at the time the Prospectus Supplement was issued, at the time any such amended or supplemented Prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) that the documents incorporated by reference in the Prospectus (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which such counsel need express no opinion, and except to the extent that any statement therein is modified or superseded in the Prospectus), as of the dates they were filed with the Commission, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading. Such opinion shall be to such further effect with respect to other legal matters relating to this Agreement, the Terms Agreement and the sale of the Offered Securities pursuant to this Agreement as counsel for the Underwriters may reasonably request. Such opinion shall be limited to Massachusetts and federal law. 26 In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the Commonwealth of Massachusetts and the federal law of the United States, upon opinions of other counsel, who shall be counsel satisfactory to counsel for the Underwriters, in which case the opinion shall state that such counsel is entitled to so rely. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Significant Subsidiaries and certificates of public officials. (c) At the applicable Closing Time, you shall have received the favorable opinion of Brown & Wood LLP, counsel for the Underwriters, dated as of the Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters, to the effect that the opinion delivered pursuant to Section 5(b) appears on its face to be appropriately responsive to the requirements of this Agreement and the applicable Terms Agreement except, specifying the same, to the extent waived by you, and with respect to the incorporation and legal existence of the Company, the Offered Securities, this Agreement, the Registration Statement, the Prospectus and such other related matters as you may require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States, upon the opinions of counsel satisfactory to you. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Significant Subsidiaries and certificates of public officials. (d) At the applicable Closing Time there shall not have been, since the date of the applicable Terms Agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition (financial or otherwise) or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received a certificate of the Chairman and Chief Executive Officer, the President and Chief Operating Officer, a Vice President or a Vice Chairman, and the Vice Chairman, Chief Financial Officer and Treasurer, the Executive Director, Global Treasury & Investments or the Comptroller of the Company, dated as of such Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company contained in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of such Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be 27 complied with or satisfied at or prior to such Closing Time, and (iv) to the best knowledge of such person, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (e) PricewaterhouseCoopers LLP shall have furnished to you a letter or letters (in each case in form and.substance satisfactory to you), together with signed or reproduced copies of such letter or letters for each of the other Underwriters, if any, making the statements contained in paragraphs (1) and (2) as follows: (1) At the date of the applicable Terms Agreement, a letter relating to the Company (the "Terms Agreement Letter"), to the effect that: (a) They are independent public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published 1933 Act Regulations. (b) In their opinion, the audited financial statements and the related financial statement schedules included or incorporated by reference in the Company's most recently filed annual report on Form 10-K comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations with respect to Registration Statements on Form S-3 and the 1934 Act and the 1934 Act Regulations with respect to annual reports on Form 10-K. (c) On the basis of procedures (but not an examination in accordance with generally accepted auditing standards) consisting of a reading of the minutes of all meetings of the stockholders and directors of the Company and of FNBB and the minutes of meetings of the Executive, Audit, Compensation, and Board Governance Committees of the Board of Directors of the Company from the date of the latest audited consolidated financial statements of the Company, a reading of the unaudited consolidated financial statements of the Company and its subsidiaries included or incorporated by reference in each of the Company's quarterly reports on Form 10-Q filed prior to the date of the applicable Terms Agreement and subsequent to the Form 10-K described in (b) above, a reading of the most recent consolidated financial statement of the Company, and inquiries of certain officials of the Company and its subsidiaries responsible for financial and 28 accounting matters, all such inquiries and procedures being carried out to a specified date not more than five business days prior to the date of the Terms Agreement Letter, nothing came to their attention that caused them to believe that: (i) the unaudited consolidated financial statements included or incorporated by reference in each quarterly report on Form 10-Q do not comply as to form in all material respects with the applicable accounting requirements of the 1934 Act and the 1934 Act Regulations with respect to Form 10-Q; or (ii) such unaudited consolidated financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of audited consolidated financial statements referred to above, except as disclosed in the notes to such unaudited consolidated financial statements or as otherwise described in such Terms Agreement Letter; or (iii) there was any increase at the specified date in the consolidated notes payable of the Company and its consolidated subsidiaries or any increase in the number of shares of Capital Securities outstanding of the Company, or any decrease in the stockholder's equity of the Company, in each case as compared with the most recent balance sheet included or incorporated by reference in the Registration Statement, except in each case for changes, decreases or increases that the Registration Statement discloses have occurred or may occur, or which are disclosed in the Terms Agreement Letter; (iv) for the period from the date of the latest consolidated balance sheet of the Company and its subsidiaries included or incorporated by reference in the Prospectus to such specified date, there was any decrease in the net interest revenue or net income, in each case as compared with the comparable period in the preceding year, except in each case for any decreases that the Registration Statement discloses have occurred or may occur, or which are disclosed in the Terms Agreement Letter. 29 (d) Such letter shall further state that, in addition to their examinations, inspections, inquiries and other procedures referred to therein, they have performed such other procedures, specified by you, not constituting an audit, as they have agreed to perform and report on with respect to certain amounts, percentages, numerical data and other financial information in the most recently filed Form 10-K, each Form 10-Q incorporated by reference in the Registration Statement, the Registration Statement, the Prospectus and the exhibits to the Registration Statement or in other documents incorporated by reference in the Prospectus, and have compared certain of such amounts, percentages, numerical data and financial information with, and have found such items to be in agreement with or derived from, the detailed accounting and financial records of the Company and its subsidiaries. (2) At the Closing Time, a letter dated the Closing Time (the "Closing Letter"), to the effect that they reaffirm as of the date of the Closing Letter (and as though made on the date of the Closing Letter) all statements made in the Terms Agreement Letter, except that the inquiries and procedures specified therein shall have been carried out to a specified date not more than five days prior to the date of the Closing Letter. (e) Between the date of the applicable Terms Agreement and the Closing Time, (i) no downgrading shall have occurred in the rating accorded the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act and (ii) no such organization shall have given any notice of any intended or potential downgrading or of any surveillance or review, with possible negative implications, of its rating of any of the Company's debt securities or preferred stock. (f) On or prior to the Closing Time, the Offered Securities shall have been duly authorized for listing on such exchange, if any, as is specified in the applicable Terms Agreement. (g) At the Closing Time, counsel for the Underwriters shall have been furnished with all such documents, certificates and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Offered Securities as herein contemplated and related 30 proceedings, or in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Offered Securities as herein contemplated shall be satisfactory in form and substance to you and counsel for the Underwriters. (h) In the event the Underwriters exercise their option provided in a Terms Agreement as set forth in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as of each Date of Delivery, and you shall have received: (1) A certificate, dated such Date of Delivery, of the Chairman and Chief Executive Officer, the President and Chief Operating Officer, a Vice President or a Vice Chairman, and the Vice Chairman, Chief Financial Officer and Treasurer, the Executive Director, Global Treasury & Investments or the Comptroller of the Company, in their capacities as such, confirming that the certificate delivered at Closing Time pursuant to Section 5(d) hereof remains true and correct as of such Date of Delivery. (2) The favorable opinion of Gary A. Spiess, General Counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise substantially to the same effect as the opinion required by Section 5(b) hereof. (3) The favorable opinion of Brown & Wood LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 5(c) hereof. (4) A letter from PricewaterhouseCoopers LLP in form and substance satisfactory to you and dated such Date of Delivery, substantially the same in scope and substance as the Closing Letter furnished to you pursuant to Section 5(e)(2) hereof, except that the "specified date" in the letter shall be a date not more than five days prior to such Date of Delivery. 31 If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, the applicable Terms Agreement may be terminated by you by notice to the Company at any time at or prior to the applicable Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Notwithstanding any such termination, the provisions of Sections 6, 7 and 8 shall remain in effect. Section 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), and all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, or any preliminary prospectus supplement, or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including fees and disbursements of counsel chosen by you), reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; 32 PROVIDED, HOWEVER, that this indemnity agreement does not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through you expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus, or any preliminary prospectus supplement, or the Prospectus (or any amendment or supplement thereto). (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 6(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus, or any preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriter through you expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus, or any preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto). (c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Section 7. CONTRIBUTION. In order to provide for just and equitable contribution in circumstances under which the indemnity provided for in Section 6 is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms, the Company and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement incurred by the Company and one or more of the Underwriters, as incurred, in such proportions that (a) the 33 Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the initial public offering price appearing thereon and (b) the Company is responsible for the balance; PROVIDED, HOWEVER, that (i) in no case shall any Underwriter be liable or responsible for any amount in excess of the underwriting discount applicable to the Offered Securities purchased by such Underwriter hereunder and under the applicable Terms Agreement and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as the Company. Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The representations, warranties, indemnities, agreements and other statements of the Company or its officers set forth in or made pursuant to this Agreement and any Terms Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Company or any Underwriter or controlling person and shall survive delivery of and payment for the Offered Securities. Section 9. TERMINATION OF AGREEMENT. (a) This Agreement may be terminated for any reason at any time by either the Company or you upon the giving of thirty days' written notice of such termination to the other party hereto. You may also terminate a Terms Agreement, immediately upon notice to the Company, at any time at or prior to the applicable Closing Time (i) if there shall have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business or (ii) if there shall have occurred any outbreak or escalation of existing hostilities or other national or international calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in your reasonable judgment, impracticable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities or (iii) if trading in any securities of the Company has been suspended by the Commission or the National 34 Association of Securities Dealers, Inc., or if trading generally on the New York Stock Exchange, the Boston Stock Exchange or in the over-the-counter market has been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities have been required, by such exchanges or by order of the Commission, any exchange on which such securities are listed or any other governmental authority with appropriate jurisdiction over such matters or (iv) if a banking moratorium has been declared by either federal or New York authorities. (b) If this Agreement or any Terms Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party, except to the extent provided in Section 4. Notwithstanding any such termination (i) the covenants set forth in Section 3(b), (c) and (e) with respect to any offering of Offered Securities shall remain in effect so long as any Underwriter owns any such Offered Securities purchased from the Company pursuant to the applicable Terms Agreement and during the period when the Prospectus is required to be delivered in connection with sales of the Offered Securities and (ii) the covenants set forth in Section 3(g), (h), (j) and, if applicable, (k), the provisions of Section 4, the indemnity agreement set forth in Section 6, the contribution provisions set forth in Section 7 and the provisions of Sections 8 and 13 shall remain in effect. Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the Underwriters participating in an offering of Offered Securities shall fail at the applicable Closing Time to purchase the Offered Securities which it or they are obligated to purchase hereunder and under the applicable Terms Agreement (the "Defaulted Securities"), you shall have the right, within 36 hours thereafter, to make arrangements for one or more of the nondefaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, you have not completed such arrangements within such 36-hour period, then: (a) if the number of Defaulted Securities does not exceed 10% of the number of Offered Securities to be purchased pursuant to such Terms Agreement, the nondefaulting Underwriters named in such Terms Agreement shall be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligations bear to the underwriting obligations of all nondefaulting Underwriters, or 35 (b) if the number of Defaulted Securities exceeds 10% of the Offered Securities to be purchased pursuant to such Terms Agreement, the applicable Terms Agreement shall terminate without liability on the part of any nondefaulting Underwriter. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default under this Agreement and the applicable Terms Agreement. In the event of any such default that does not result in the termination of the applicable Terms Agreement, either you or the Company shall have the right to postpone the applicable Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 10. Section 11. NOTICES. All notices and other communications under this Agreement and any Terms Agreement shall be in writing and shall be deemed to have been duly given if delivered, mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to _______, or in respect of any Terms Agreement, to such other person and place as may be specified therein; notices to the Company shall be directed to it at BankBoston Corporation, 100 Federal Street, 01-25-01, Boston, Massachusetts 02110, attention of Gary A. Spiess, General Counsel. Section 12. PARTIES. This Agreement herein set forth and any Terms Agreement is made solely for the benefit of any Underwriter which becomes a party to a Terms Agreement, the Company and, to the extent expressed, any person controlling the Company or any such Underwriter, and the directors of the Company, its officers who have signed the Registration Statement, and their respective executors, administrators, successors and assigns and, subject to the provisions of Section 10, no other person shall acquire or have any right under or by virtue of this Agreement. The term "successors and assigns" shall not include any purchaser, as such purchaser, from any Underwriter of the Offered Securities. All of the obligations of any Underwriters hereunder and under any Terms Agreement are several and not joint. Section 13. GOVERNING LAW AND TIME. This Agreement and each Terms Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in said State. Specified times of day refer to New York City time. 36 Section 14. COUNTERPARTS. This Agreement may be executed in one or more counterparts and when a counterpart has been executed by each party, all such counterparts taken together shall constitute one and the same agreement. 37 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this instrument will become a binding agreement between the Company and each Underwriter in accordance with its terms. Very truly yours, BANKBOSTON CORPORATION By __________________________________ Name: Title: Confirmed and accepted as of the date first above written: 38 Exhibit A BANKBOSTON CORPORATION [Title of Securities] TERMS AGREEMENT Dated: , 199_ To: BankBoston Corporation 100 Federal Street Boston, Massachusetts 02110 Re: Underwriting Agreement dated , 199_ Dear Sirs: We (the "Representative[s]") understand that BankBoston Corporation, a Massachusetts corporation (the "Company"), proposes to issue and sell [[$ aggregate principal amount] of its [senior debt securities] [and] [subordinated [convertible or exchangeable] debt securities] (the "Debt Securities")] [and] [_______ shares of its [convertible] [exchangeable] preferred stock (the "Preferred Shares")] [_____ depositary shares (the "Depositary Shares") each representing ____ of a share of ____ preferred stock] [and] [____ shares of its common stock, par value $1.00 per share ("Common Stock")]. This Agreement is the 39 Terms Agreement referred to in the underwriting agreement dated ____________, 199_ (the "Underwriting Agreement"). Subject to the terms and conditions set forth herein or incorporated by reference herein, the Underwriters named below (the "Underwriters") offer to purchase, severally and not jointly, the respective [amounts of [Debt Securities] [and] [Preferred Shares] [Depositary Shares]] [numbers of shares of Common Stock] set forth below. Principal Principal Principal Number Amount of Amount of Amount of of Shares Name of Debt Preferred Depositary of Common Underwriter Securities Shares Shares Stock - ----------- --------- ---------- --------- ---------- --------- --------- ---------- --------- ---------- --------- Total $ $ $ --------- ---------- --------- ---------- --------- 40 DEBT SECURITIES Title of Debt Securities: Principal amount to be issued: $ Senior or Subordinated: Currency: Current ratings: Interest rate or formula: % Interest payment dates: Date of maturity: Redemption provisions: Sinking fund requirements: Initial public offering price: % of the principal amount, plus accrued interest, if any, [or amortized original issue discount, if any,] from , 19 . Purchase price: % of the principal amount, plus accrued interest, if any, 41 [or amortized original issue discount, if any,] from , 19 (payable in next day funds). Listing requirement: [None] [NYSE] [BSE] Convertible: Conversion provisions: Exchangeable: Exchange provisions: Closing date and location: Additional representations, if any: Lock-up provisions: Number of Option Securities, if any: Other terms and conditions: 42 PREFERRED SHARES Title of Preferred Shares: Principal amount to be issued: $ Currency: Annual cash dividend rate: % Payable: Liquidation preference per Share: Initial public offering price: %, plus accrued interest or amortized original issue discount, if any, from __________, 19__. Purchase Price: %, plus accrued interest or amortized original issue discount, if any, from _____________, 19__ (payable in next day funds). Listing Requirement: [None] [NYSE] [BSE] Convertible: Initial Conversion price: $____ per share of [Common Stock] [Preferred Stock] [Capital Securities]. Other conversion provisions: 43 Exchangeable: Exchange Provisions: Closing date and location: Additional representations, if any: Redemption provisions: Lock-up provisions: Sinking fund requirements: Number of Option Securities, if any: Other terms and conditions: DEPOSITARY SHARES Title of Depositary Shares: 44 Principal amount to be issued: $ Currency: Fractional amount of Preferred Shares represented by each Depositary Share: Initial public offering price per Depositary Share: % of the principal amount, plus accrued interest [or amortized original issue discount], if any, from ____________, 19__. Purchase price per Depository Share: (amount equal to the initial public offering price set forth above, less $________ per Depositary Share). Annual cash dividend amount: $ Payable: Closing date and location: Additional representations, if any: Redemption provisions: Lock-up provisions: Sinking fund requirements: 45 Number of Option Securities, if any: Other terms and conditions: COMMON STOCK Initial public offering price per share: Purchase Price per share: Listing Requirement: [NYSE] [BSE] Closing date and location: Additional representations, if any: Lock-up provisions: Number of Option Securities, if any: Purchase Price per Option Security: Other terms and conditions: 46 WARRANTS Title of Warrants: Number to be issued: Currency: Initial public offering price per Warrant: $ Purchase price per Warrant: $ Listing requirement: [None] [NYSE] [BSE] Exercisable for: Exercise price: Exercise provisions: Closing date and location: Additional representations, if any: Redemption provisions: 47 Lock-up provisions: Other terms and conditions: Each Underwriter severally agrees, subject to the terms and provisions of the above referenced Underwriting Agreement, which is incorporated herein in its entirety and made a part hereof, to purchase the [principal amount] [number of shares] of Offered Securities set forth opposite its name and a proportionate share of Option Securities to the extent any are purchased. This Agreement shall be governed by the laws of the State of New York applicable to agreements made and to be performed in said State. If the foregoing is in accordance with your understanding of the agreement among the Underwriters and the Company, please sign and return to the undersigned a counterpart hereof, whereupon this instrument, along with all counterparts and together with the Underwriting Agreement, shall be a binding agreement among the Underwriters named herein and the Company in accordance with its terms and the terms of the Underwriting Agreement. 48 Very truly yours, [Representatives[s]] By:_________________________________ Acting on behalf of themselves and the other named Underwriters Confirmed and accepted as of the date first above written: BANKBOSTON CORPORATION By: ____________________________ Name: Title: 49 EX-4.F 3 WARRANT AGREEMENT ================================================================================ BANKBOSTON CORPORATION and ---------------------, as Warrant Agent WARRANT AGREEMENT Dated as of ____________, 199 ================================================================================ TABLE OF CONTENTS*
Page ---- ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES......................... 2 SECTION 1.01. Issuance of Warrants......................................... 2 SECTION 1.02. Execution and Delivery of Warrant Certificates................................................. 2 SECTION 1.03. Issuance of Warrant Certificates............................. 4 ARTICLE II. WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS............. 5 SECTION 2.01. Warrant Price................................................ 5 SECTION 2.02. Duration of Warrants......................................... 5 SECTION 2.03. Exercise of Warrants......................................... 5 ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES.............................. 7 SECTION 3.01. No Rights as Warrant Securityholders Conferred by Warrants or Warrant Certificates................................................. 7 SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates................................................. 7 SECTION 3.03. Holder of Warrant Certificate May Enforce Rights....................................................... 8 ARTICLE IV. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES................ 8 SECTION 4.01. Exchange and Transfer of Warrant Certificates................................................. 8 SECTION 4.02. Treatment of Holders of Warrant Certificates. ............................................... 9 SECTION 4.03. Cancellation of Warrant Certificates......................... 9
- ---------- * The Table of Contents is not part of the Warrant Agreement. i
Page ---- ARTICLE V. CONCERNING THE WARRANT AGENT................................. 10 SECTION 5.01. Warrant Agent................................................ 10 SECTION 5.02. Conditions of Warrant Agent's Obligations. .................. 10 SECTION 5.03. Resignation and Appointment of Successor. ................... 12 SECTION 5.04. Payment of Taxes............................................. 13 ARTICLE VI. MISCELLANEOUS................................................ 14 SECTION 6.01. Amendment.................................................... 14 SECTION 6.02. Notices and Demands to the Company and Warrant Agent............................................ 14 SECTION 6.03. Addresses.................................................... 14 SECTION 6.04. Applicable Law............................................... 14 SECTION 6.05. Delivery of Prospectus....................................... 14 SECTION 6.06. Obtaining of Governmental Approvals.......................... 14 SECTION 6.07. Persons Having Rights under Warrant Agreement.................................................... 15 SECTION 6.08. Headings..................................................... 15 SECTION 6.09. Counterparts................................................. 15 SECTION 6.10. Inspection of Agreement...................................... 15 [SECTION 6.11. Adjustment of Number of [Preferred Shares] [Shares of Common Stock]; Notices............................ 15 SECTION 6.12. Fractional Shares............................................ 22
ii THIS WARRANT AGREEMENT dated as of _____________, 199_ between BankBoston Corporation, a corporation duly organized and existing under the laws of the Commonwealth of Massachusetts (herein called the "Company") and _____________, a ______________ organized and existing under the laws of _________________, as Warrant Agent (hereinafter called the "Warrant Agent"). WHEREAS, the Company proposes to issue and sell from time to time, either jointly or separately, certain of its (i) senior debt securities (the "Senior Debt Securities"), and/or (ii) subordinated debt securities (the "Subordinated Debt Securities", and, together with the Senior Debt Securities, the "Debt Securities"), and/or (iii) preferred stock (the "Preferred Shares"), and/or (iv) depositary shares which represent fractional interest in the Preferred Shares (the "Depositary Shares"), and/or (v) common stock, par value $1.00 per share ("Common Stock"), and/or, (vi) warrants (the "Warrants") to purchase Debt Securities, Preferred Shares or Common Stock in one or more offerings on terms determined at the time of sale; and WHEREAS, the Company has prepared and filed with the Securities and Exchange Commission a registration statement on Form S-3 (File No. 333- ), including a prospectus, relating to the securities described above and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"); and [IF DEBT SECURITIES - WHEREAS, the Company has entered into an indenture dated as of June 15, 1992 (the "Indenture"), with Norwest Bank Minnesota, National Association, as trustee (such trustee, and any successor to such trustee, to be herein called the "Trustee"), as amended by the First 1 Supplemental Indenture, dated as of June 24, 1993, providing for the issuance from time to time of its [Senior] [Subordinated] Debt Securities to be issued in one or more series as provided in the Indenture; and] [IF PREFERRED SHARES - WHEREAS, the Company has established a series of Preferred Shares in accordance with the terms of the Certificate of Vote of Directors Establishing a Series of a Class of Stock relating to such Preferred Shares (the "Certificate of Vote"); and] [IF WARRANTS ATTACHED - WHEREAS, the Company proposes to sell the [Debt Securities] [Preferred Shares] [Common Stock] now being offered (the "Offered Securities" ) with warrant certificates evidencing one or more warrants (the "Warrants" or, individually, a "Warrant") representing the right to purchase the [Debt Securities] [Preferred Shares] [Common Stock] purchasable through exercise of the Warrants (the "Warrant Securities"), such warrant certificates and other warrant certificates issued 2 pursuant to this Agreement being herein called the "Warrant Certificates"; and] [IF WARRANTS ALONE - WHEREAS, the Company proposes to sell warrant certificates evidencing one or more warrants (the "Warrants" or, individually, a "Warrant") representing the right to purchase the [Debt Securities][Preferred Shares][Common Stock] purchasable through exercise of Warrants] (the "Warrant Securities"), such warrant certificates and other warrant certificates issued pursuant to this Agreement being herein called the "Warrant Certificates"; and] WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, exchange, exercise and replacement of the Warrant Certificates, and in this Warrant Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, exchanged, exercised and replaced; NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I. ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. SECTION 1.01. ISSUANCE OF WARRANTS. [IF OFFERED SECURITIES WITH WARRANTS ATTACHED] - Warrants shall be [initially] issued in connection with the issuance of the Offered Securities [but shall be separately transferable on and after _____, 199_ (the "Detachable Date")][and shall not be separately transferable]. Warrant Certificates shall be [initially] issued in units with the Offered Securities and each Warrant Certificate included in such a unit shall evidence ________ Warrants for each [share of Offered Securities] [$________ principal amount of Offered Securities or its equivalent in a foreign currency or composite currency] included in such unit.] [IF WARRANTS ALONE - Upon issuance each Warrant Certificate shall evidence one or more Warrants.] Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase [________ shares of Warrant Securities] [a Warrant Security in the principal amount of $_________ or its equivalent in a foreign currency or composite currency]. SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each Warrant Certificate, whenever issued, shall 3 be in [bearer] [registered] form substantially in the form set forth in Exhibit A hereto, shall be dated as of its issue date and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Warrant Certificates may be listed or authorized for trading, or to conform to usage. The Warrant Certificates shall be signed on behalf of the Company by its Chairman and Chief Executive Officer, the President and Chief Operating Officer, a Vice President or a Vice Chairman, and the Vice Chairman, Chief Financial Officer and Treasurer, Executive Director, Global Treasury & Investments or Comptroller, and attested by its Clerk or any of its Assistant Clerks, under its corporate seal. Such signatures may be manual or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates. No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder. In case any officer of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates nevertheless may be countersigned and delivered as though the person who signed such Warrant Certificates had not ceased to be such officer of the Company, and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such person was not such officer. Pending the preparation of definitive Warrant Certificates, the Company may execute, and upon the order of the Company the Warrant Agent shall authenticate and deliver, temporary Warrant Certificates which are printed, lithographed, typewritten, mimeographed or otherwise produced substantially of the tenor of the definitive Warrant Certificates in lieu of which they are 4 issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Warrant Certificates may determine, as evidenced by their execution of such Warrant Certificates. If temporary Warrant Certificates are issued, the Company will cause definitive Warrant Certificates to be prepared without unreasonable delay. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates upon surrender of the temporary Warrant Certificates at the corporate trust office of the Warrant Agent [or _________], without charge to the holder. Upon surrender for cancellation of any one or more temporary Warrant Certificates, the Company shall execute and the Warrant Agent shall authenticate and deliver in exchange therefor definitive Warrant Certificates representing the same aggregate number of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all respects be entitled to the same benefits under this Agreement as definitive Warrant Certificates. [IF BEARER WARRANTS - The term "holder" or "holder of a Warrant Certificate" as used herein shall mean [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - , prior to the Detachable Date, the [bearer] [registered owner] of the Offered Security to which such Warrant Certificate was initially attached, and after such Detachable Date] the bearer of such Warrant Certificate.] [IF REGISTERED WARRANTS - The term "holder" or "holder of a Warrant Certificate" as used herein shall mean any person in whose name at the time any Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - or upon the register of the Offered Securities prior to the Detachable Date.] The Company will, or will cause the registrar of the Offered Securities to, make available at all times to the Warrant Agent such information as to holders of the Offered Securities with Warrants as may be necessary to keep the Warrant Agent's records up to date.] SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates evidencing the right to purchase [___ shares] [an aggregate principal amount not exceeding $_________] of Warrant Securities or its equivalent in a foreign currency or composite currency (except as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign Warrant Certificates evidencing Warrants representing the right 5 to purchase [____ shares] [up to $___________ aggregate principal amount] of Warrant Securities or its equivalent in a foreign currency or composite currency and shall deliver such Warrant Certificates to or upon the order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate only if the Warrant Certificate is issued in exchange or substitution for one or more previously countersigned Warrant Certificates [IF REGISTERED WARRANTS - or in connection with their transfer], as hereinafter provided. ARTICLE II. WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS. SECTION 2.01. WARRANT PRICE. [On__________, 199_] the exercise price of each Warrant is [$]___________. [During the period from __________, 199_ through and including _________, 199_, the exercise price of each Warrant will be [$]________ plus [accreted original issue discount] [accrued interest] from ______, 199_. On _______, 199_ the exercise price of each Warrant will be [$]_________. During the period from ____________, 199_ through and including __________, 199_, the exercise price of each Warrant will be [$]_______________ plus [accreted original issue discount] [accrued interest] from ___________, 199_; [in each case the original issue discount will be accreted at a __% annual rate, computed on a [semiannual] [annual] basis using a 360-day year consisting of twelve 30-day months;] [in each case accrued interest will be computed at a rate equal to __%]]. Such purchase price of Warrant Securities may be denominated in U.S. dollars or its equivalent in a foreign currency or composite currency and may be determined in reference to an index and is referred to in this Agreement as the "Warrant Price." [The original issue discount for each $1,000 principal amount of Warrant Securities (or its equivalent thereof in a foreign currency or composite currency) is [$]_____________.] SECTION 2.02. DURATION OF WARRANTS. Each Warrant evidenced by a Warrant Certificate may be exercised in whole at any time, as specified herein, on or after [the date thereof] [_____________, 19__] and at or before the close of business on _____________, 19__ (the "Expiration Date"). Each Warrant not exercised at or before the close of business on the Expiration Date shall become void, and all rights of the holder of the Warrant Certificate evidencing such Warrant and under this Agreement shall cease. SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified in Section 2.02, any whole number of Warrants, if the 6 Warrant Certificate evidencing the same shall have been countersigned by the Warrant Agent, may be exercised by providing certain information set forth on the reverse side of the Warrant Certificate and by paying in full, [in cash or by certified check or official bank check or by bank wire transfer, in each case,] [by bank wire transfer] in immediately available funds, the Warrant Price for each Warrant exercised, to the Warrant Agent at its corporate trust office, ____________________ [or at ________________________], provided that such exercise is subject to receipt within five Business Days (as defined in Section 6.11(f) hereof) of such [payment] [wire transfer] by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant is exercised. The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in the account of the Company maintained with it for such purpose and shall advise the Company by telephone at the end of each day on which a [payment] [wire transfer] for the exercise of Warrants is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing. (b) The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company [and the Trustee under the Indenture] of (i) the number of Warrants exercised in accordance with the terms and conditions of this Agreement and the Warrant Certificates, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing the balance, if any, of the Warrants remaining after such exercise, and (iv) such other information as the Company [or the Trustee] shall reasonably require. (c) As soon as practicable after the exercise of any Warrant or Warrants, the Company shall issue[, pursuant to the Indenture, in authorized denominations to or upon the order of the holder of the Warrant Certificate evidencing such Warrant or Warrants,] the Warrant Security or Warrant Securities to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder; and, if fewer than all of the Warrants evidenced by such Warrant Certificate were exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver to or upon the order of such holder, a 7 new Warrant Certificate evidencing the number of Warrants remaining unexercised. (d) The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issue of the Warrant Securities; and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Securities until such tax or other charge shall have been paid or it has been established to the Company's satisfaction that no such tax or other charge is due. ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES. SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDERS CONFERRED BY WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby shall entitle the holder thereof to any of the rights of a holder of the Warrant Securities, including, without limitation, the right [to vote or] to receive payments of [dividends or distributions of any kind] [principal of (and premium, if any,) or interest, if any, on the Warrant Securities or to enforce any of the covenants in the Indenture]. SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATES. Upon receipt by the Company and the Warrant Agent of evidence reasonably satisfactory to them of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and of indemnity reasonably satisfactory to them and, in the case of mutilation, upon surrender thereof to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing a like number of Warrants. Upon the issuance of any new Warrant Certificate under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to this Section in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation of the Company, 8 whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Warrant Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates. SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS. Notwithstanding any of the provisions of this Warrant Agreement, any holder of a Warrant Certificate, without the consent of the Warrant Agent, [the Trustee,] the holder of any Warrant Securities or the holder of any other Warrant Certificate, may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, his right to exercise the Warrant or Warrants evidenced by his Warrant Certificate in the manner provided in his Warrant Certificate and in this Warrant Agreement. ARTICLE IV. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE - Upon] [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE Prior to the Detachable Date a Warrant Certificate may be exchanged or transferred only together with the Offered Security to which the Warrant Certificate was initially attached, and only for the purposes of effecting or in conjunction with an exchange or transfer of such Offered Security. On or prior to the Detachable Date, each transfer of the Offered Security on the register of the Offered Securities shall operate also to transfer the related Warrant Certificates. After the Detachable Date upon] surrender at the corporate trust office of the Warrant Agent or [__________], Warrant Certificates may be exchanged for other Warrant Certificates in denominations evidencing Warrants, each Warrant entitling the holder thereof to purchase [_____ shares] [$_____________ principal amount of Warrant Securities or its equivalent in a foreign currency or composite currency] at the Warrant Price [IF REGISTERED WARRANTS - or may be transferred in whole or in part] [IF BEARER OR REGISTERED WARRANTS - provided that such other Warrant Certificates evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered.] [IF REGISTERED WARRANTS - The Warrant Agent shall keep, at its corporate trust office [or at __________], books in which, 9 subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates in accordance with Section 1.02 and transfers of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate trust office [or at ______] for transfer, properly endorsed or accompanied by appropriate instruments of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent.] No service charge shall be made for any exchange or transfer of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such exchange or transfer. Whenever any Warrant Certificates are so surrendered for exchange or transfer an authorized officer of the Warrant Agent shall countersign and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as so requested. The Warrant Agent shall not be required to effect any exchange or transfer which will result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any exchange or transfer of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations, and entitled to the same benefits under this Warrant Agreement, as the Warrant Certificates surrendered for such exchange or transfer. SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Subject to Section 4.01, each] [IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR BEARER WARRANTS ALONE - Each] Warrant Certificate shall be transferable by delivery and shall be deemed negotiable and the bearer of each Warrant Certificate may be treated by the Company, the Warrant Agent and all other persons dealing with such bearer as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding.] [IF REGISTERED WARRANTS ALONE OR REGISTERED WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Every holder of a Warrant Certificate, by accepting the same, consents and agrees with the Company, the Warrant Agent and with every subsequent holder of such Warrant Certificate that until the Warrant Certificate is transferred on the books of the Warrant Agent [or the register of the Offered Securities prior to the Detachable Date], the Company and the Warrant Agent may treat the registered holder as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding.] 10 SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant Certificate surrendered for exchange, transfer or exercise of the Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this Warrant Agreement, no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof. The Warrant Agent shall deliver to the Company from time to time or otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to the Company. ARTICLE V. CONCERNING THE WARRANT AGENT. SECTION 5.01. WARRANT AGENT. The Company hereby appoints ____________ as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and subject to the conditions herein set forth; and ____________ hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof. SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of the Warrant Certificates shall be subject: (a) COMPENSATION AND INDEMNIFICATION. The Company agrees to pay the Warrant Agent promptly the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability, or expense incurred without negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, as well as the costs and expenses of defending against any claim or liability in the premises. 11 (b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement and in connection with the Warrants, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust with any of the owners or holders of the Warrants. (c) DOCUMENTS. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Warrant Certificates, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. (d) CERTAIN TRANSACTIONS. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, any Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. [Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee under the Indenture.] (e) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Warrant Agreement or of the Warrants. (f) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not incur any liability with respect to the validity of any of the Warrants. (g) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall not be responsible for any of the recitals or representations herein or in the Warrant Certificates contained (except as to the Warrant Agent's countersignature thereon), all of which are made solely by the Company. (h) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to perform such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be 12 accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.02 hereof, to make any demand upon the Company. SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all the Warrant Certificates are no longer exercisable. (b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation will become effective; provided that such date shall not be less than three months after the date on which such notice is given unless the Company agrees to accept less notice. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligations of the Company under Section 5.02(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent. (c) In case at any time the Warrant Agent shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file a petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or under any other applicable Federal or State bankruptcy law or similar law or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property or assets, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver or 13 custodian of it or of all or any substantial part of its property or assets shall be appointed, or if an order of any court shall be entered for relief against it under the provisions of Title 11 of the United States Code, as now constituted or hereafter amended, or under any other applicable Federal or State bankruptcy or similar law, or if any public officer shall have taken charge or control of the Warrant Agent or of its property or affairs, for the purpose of rehabilitation, conservation or liquidation, it shall be disqualified from serving as Warrant Agent and a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent so disqualified shall cease to be Warrant Agent hereunder. (d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without further act, deed or conveyance, shall become vested with all authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Warrant Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. SECTION 5.04. PAYMENT OF TAXES. The Company will pay all stamp and other duties, if any, to which, under the laws of the United States of America, this Warrant Agreement or the original issuance of the Warrant Certificates may be subject. 14 ARTICLE VI. MISCELLANEOUS. SECTION 6.01. AMENDMENT. This Warrant Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any other provisions with respect to matters or questions arising under this Warrant Agreement as the Company and the Warrant Agent may deem necessary or desirable; provided that such action shall not adversely affect the interests of the holders of the Warrant Certificates. SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If the Warrant Agent shall receive any notice or demand addressed to the Company by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice of demand to the Company. SECTION 6.03. ADDRESSES. Any communications from the Company to the Warrant Agent with respect to this Warrant Agreement shall be addressed to _____________, Attention: ____________, and any communications from the Warrant Agent to the Company with respect to this Warrant Agreement shall be addressed to BankBoston Corporation, 100 Federal Street, 01-25-01, Boston, Massachusetts 02110, Attention: General Counsel (or such other address as shall be specified in writing by the Warrant Agent or by the Company). SECTION 6.04. APPLICABLE LAW. The validity, interpretation and performance of this Warrant Agreement and each Warrant Certificate issued hereunder and of the respective terms and provisions thereof shall be governed by the laws of The Commonwealth of Massachusetts. SECTION 6.05. DELIVERY OF PROSPECTUS. The Company will furnish to the Warrant Agent sufficient copies of a prospectus relating to the Warrant Securities deliverable upon exercise of Warrants (the "Prospectus"), and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus. SECTION 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, 15 consents and approvals of governmental agencies and authorities and securities acts filings under United States Federal and State laws (including, without limitation, maintenance of the effectiveness of a registration statement in respect of the Warrants and Warrant Securities under the Securities Act of 1933), which may be or become requisite in connection with the issuance, sale, transfer, and delivery of the Warrant Certificates, the exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrant Securities issued upon exercise of the Warrants or upon the expiration of the period during which the Warrants are exercisable. SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in this Warrant Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise or agreement hereof; and all covenants, conditions, stipulations, promises and agreements in this Warrant Agreement contained shall be for the sole and exclusive benefit of the Company and the Warrant Agent and their successors and of the holders of the Warrant Certificates. SECTION 6.08. HEADINGS. The descriptive headings of the several Articles and Sections of this Warrant Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. SECTION 6.09. COUNTERPARTS. This Warrant Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Warrant Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit his Warrant Certificate for inspection by it. [SECTION 6.11. ADJUSTMENT OF NUMBER OF [PREFERRED SHARES] [SHARES OF COMMON STOCK]; NOTICES. The number of [Preferred Shares] [shares of Common Stock] purchasable upon the exercise of each Warrant (the "Exercise Rate") is subject to adjustment from time to time as provided in this Section. 16 (a) DIVIDENDS OR DISTRIBUTIONS IN [PREFERRED SHARES] [SHARES OF COMMON STOCK]. In case the Company shall pay or make a dividend or other distribution on [any class or series of Preferred Shares for which Warrants may be exercised] [its Common Stock] in [such Preferred Shares] [shares of its Common Stock], the Exercise Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by dividing such Exercise Rate by a fraction of which the numerator shall be the number of shares of [such Preferred Shares] [Common Stock] outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (a), the number of shares of [Preferred Shares] [Common Stock] at any time outstanding shall not include shares held in the treasury of the Company. The Company will not pay any dividend or make any distribution on shares of [Preferred Shares] [Common Stock] held in the treasury of the Company. (b) RIGHTS OR WARRANTS. In case the Company shall issue rights or warrants to all holders of [a class or series of its Preferred Shares for which Warrants may be exercised] [shares of its Common Stock] entitling them to subscribe for or purchase shares of [such Preferred Shares] [Common Stock] at a price per share less than the current market price per share (determined as provided in paragraph (f) of this Section) of [such Preferred Shares] [Common Stock] on the date fixed for the determination of stockholders entitled to receive such rights or warrants, the Exercise Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing such Exercise Rate by a fraction of which the numerator shall be the number of shares of [such Preferred Shares] [Common Stock] outstanding at the close of business on the date fixed for such determination plus the number of shares of [such Preferred Shares] [Common Stock] which the aggregate of the offering price of the total number of shares of [such Preferred Shares] [Common Stock] so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of [such Preferred Shares] [Common Stock] outstanding at the close of business on the date fixed for such determination plus the number of shares of [such Preferred Shares] [Common Stock] so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (b), the number of shares of [Preferred Shares] [Common 17 Stock] at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of [Preferred Shares] [Common Stock]. The Company will not issue any rights or warrants in respect of shares of [Preferred Shares] [Common Stock] held in the treasury of the Company. (c) SUBDIVISION OR COMBINATION. In case outstanding shares of [a class or series of its Preferred Shares for which Warrants are exercisable] [Common Stock] shall be subdivided into a greater number of shares of [such Preferred Shares] [Common Stock], the Exercise Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of [a class or series of its Preferred Shares for which Warrants are exercisable] [Common Stock] shall each be combined into a smaller number of shares of [such Preferred Shares] [Common Stock], the Exercise Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (d) DIVIDEND OR DISTRIBUTION OF ASSETS. In case the Company shall, by dividend or otherwise, distribute to all holders of [a class or series of its Preferred Shares for which Warrants are exercisable] [shares of its Common Stock] evidences of its indebtedness or assets (including securities, but excluding any rights or warrants referred to in paragraph (b) of this Section, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (a) of this Section), the Exercise Rate shall be adjusted so that the same shall equal the price determined by dividing the Exercise Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (f) of this Section) of [such Preferred Shares] [Common Stock] on the date fixed for such determination less the then fair-market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Warrant Agent and any other Registrar) of the portion of the assets or evidences of indebtedness so distributed applicable to one share of [such Preferred Shares] [Common Stock] and the denominator shall be such current market price per share of [such Preferred Shares] [Common Stock], 18 adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. (e) RECLASSIFICATION. The reclassification of [a class or series of its Preferred Shares for which Warrants are exercisable] [the Company's Common Stock] into securities other than such [Preferred Shares] [Common Stock] (other than any reclassification upon a consolidation or merger to which paragraph (1) of this Section applies) shall be deemed to involve (i) a distribution of such securities other than such [Preferred Shares] [Common Stock] to all holders of [such Preferred Shares] [Common Stock] (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (d) of this Section), and (ii) a subdivision or combination, as the case may be, of the number of shares of [such Preferred Shares] [Common Stock] outstanding immediately prior to such reclassification into the number of shares of [such Preferred Shares] [Common Stock] outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "The day upon which such subdivision becomes effective" or "The day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (c) of this Section). (f) CURRENT MARKET PRICE. For the purpose of any computation under paragraphs (b) and (d) of this Section, the current market price per share of [Preferred Shares] [Common Stock] on any date shall be deemed to be the average of the daily closing prices for the 15 consecutive Business Days selected by the Company commencing not less than 20 nor more than 30 Business Days before the day in question. The closing price for each day shall be the last reported sales price regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the New York Stock Exchange or, if such [Preferred Shares are] [Common Stock is] not listed or admitted to trading on such Exchange, on the principal national securities exchange on which such [Preferred Shares are] [Common Stock is] listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations National Market System or, if such [Preferred Shares are] [Common Stock is] not listed or admitted to trading on any national securities exchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the-counter market as furnished 19 by any New York Stock Exchange member firm selected from time to time by the Company for the purpose. In the event that no such market trading exists, the current market price will be determined by three independent nationally reorganized investment banking firms selected by the Company in such manner as the Board of Directors deems appropriate. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions where Warrants may be surrendered for exercise are authorized or obligated by law or executive order to close. (g) ADJUSTMENTS FOR TAX PURPOSES. The Company may make such adjustments in the Exercise Rate, in addition to those required by paragraphs (a), (b), (c) and (d) of this Section, as it considers to be advisable in order that any event treated for federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients. (h) NO ADJUSTMENT BELOW PAR VALUE. Notwithstanding the provisions of this Section, the Exercise Rate shall not be increased such that the price paid per share would be less than the par value thereof as a result of any adjustment made hereunder unless, under applicable law then in effect, Warrants may be exercised, at such lower Exercise Rate, for legally issued, fully paid and nonassessable shares of [Preferred Shares] [Common Stock]. (i) PERMITTED DISTRIBUTIONS. The granting of the right to purchase shares of [Preferred Shares] [Common Stock] (whether from treasury shares or otherwise), pursuant to (i) any dividend or interest reinvestment plan or [Preferred Shares] [Common Stock] purchase plan providing for the reinvestment of dividends or interest payable on securities of the Company and/or the investment of periodic optional payments; and (ii) any stock option plans and/or employee benefit or similar plans shall not be deemed to constitute an issue of rights or warrants by the Company. (j) NO ADJUSTMENTS NECESSARY. No adjustment in the Exercise Rate shall be required unless such adjustment would require an increase or decrease of at least one percent in such Exercise Rate, PROVIDED, HOWEVER, that any adjustment which by reason of this paragraph (j) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be. (k) NOTICE OF ADJUSTMENT. Whenever the Exercise Rate is adjusted as herein provided, the Company shall forthwith (i) 20 compute the adjusted Exercise Rate in accordance herewith and prepare a certificate signed by an officer of the Company setting forth the adjusted Exercise Rate and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall forthwith be filed with the Warrant Agent and any other Registrar and (ii) cause a notice stating that such adjustment has been effected and the adjusted Exercise Rate to be mailed to the holders of Warrants at their last addresses as they shall appear on the Warrant Register. (l) SUCCESSOR COMPANY. In case of any reclassification or change of outstanding shares of [the class or series of Preferred Shares issuable upon exercise of the Warrants] [Common Stock] (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or in case of any merger or consolidation of the Company with one or more other corporations (other than a merger or consolidation in which the Company is the continuing corporation and which does not result in any reclassification or change of outstanding shares of [the class or series of Preferred Shares issuable upon exercise of the Warrants] [Common Stock]), or in case of the merger of the Company into another corporation, or in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, the holder of Warrants of each series then outstanding shall have the right to exercise such Warrant for the kind and amount of shares of capital stock or other securities and property, including cash, receivable upon reclassification, change, consolidation, merger, sale or conveyance by a holder of the number of shares of [such class or series of Preferred Shares] [Common Stock] for which such Warrant might have been exercised immediately prior to such reclassification, change consolidation, merger, sale or conveyance. In any such case, the Company, or such successor or purchasing corporation, as the case may be, shall execute and deliver to the Warrant Agent a supplemental Warrant Agreement containing provisions to the effect set forth above and providing further for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section. The above provisions shall similarly apply to successive reclassifications, changes, consolidation, mergers, sales and conveyances. (m) COMPANY TO RESERVE CAPITAL SECURITIES. The Company shall at all times reserve and keep available out of the aggregate of its authorized but unissued shares or its issued shares held in its treasury, or both, for the purpose of effecting the exercise of the Warrants, such full number of its duly authorized shares of [Preferred Shares] [Common Stock] as 21 shall from time to time be sufficient to effect the exercise of all outstanding Warrants. If any shares of [Preferred Shares] [Common Stock] reserved or to be reserved for the purpose of exercise of Warrants hereunder require registration with or approval of any governmental authority under any Federal or State law before such shares may be validly delivered upon exercise, then the Company covenants that it will in good faith and as expeditiously as possible endeavor to secure registration or approval, as the case may be. The Company covenants that all shares of [Preferred Shares] [Common Stock] which may be delivered upon exercise of Warrants shall upon delivery be fully paid and nonassessable by the Company, subject to Massachusetts General Laws Chapter 156B, Section 45, and, except for taxes in connection with the exercise of the Warrants, free from all taxes, liens and charges with respect to the issue or delivery thereof. (n) COMPANY TO GIVE NOTICE OF CERTAIN EVENTS. In the event (1) that the Company shall pay any dividend or make any distribution to the holders of shares of [Preferred Shares issuable upon exercise of the Warrants] [Common Stock] otherwise than in cash charged against consolidated net earnings or retained earnings of the Company and its consolidated subsidiaries or in [such Preferred Shares] [shares of Common Stock]; or (2) that the Company shall offer for subscription or purchase, pro rata, to the holders of [Preferred Shares issuable upon exercise of the Warrants] [Common Stock] any additional shares of stock of any class or any securities exercisable for or exchangeable for stock of any class; or (3) of any reclassification or change of outstanding shares of [the class or series of Preferred Shares issuable upon the exercise of the Warrants] [Common Stock] (other than a change in par value, or from par value to no par value, or from no par combination), or of any merger of consolidation of the Company with, or merger of the Company into, another corporation (other than a merger or consolidation in which the Company is the continuing corporation and which does not result in reclassification or change of outstanding shares of [Preferred Shares issuable upon exercise of the Warrants] [Common Stock]), or of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety; or 22 (4) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company; then, and in any one or more of such events, the Company will file with the Warrant Agent and any other Registrar written notice thereof at least twenty days (or ten days in any case specified in clause (1) or (2) above) prior to (i) the record date fixed with respect to any of the events specified in (1) and (2) above and (ii) the effective date of any of the events specified in (3) above; and shall mail promptly after providing such notice to the Warrant Agent or such other Registrar a copy of such notice to the holders thereof at their last addresses as they shall appear upon the Warrant Register. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up. (o) COMPANY DETERMINATION FINAL. Any determination that the Company or the Board of Directors must make pursuant to this Section is conclusive. (p) WARRANT AGENT'S ADJUSTMENT DISCLAIMER. The Warrant Agent has no duty to determine when an adjustment under this Section should be made, how it should be made or what it should be. The Warrant Agent has no duty to determine whether a supplemental warrant agreement under paragraph (l) need be entered into or whether any provisions of any supplemental warrant agreement are correct. The Warrant Agent shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants. The Warrant Agent shall not be responsible for the Company's failure to comply with this Section. (q) ADJUSTMENTS AND WARRANT CERTIFICATES. Irrespective of any adjustments in the number or kind of shares purchasable upon the exercise of the Warrants, Warrant Certificates theretofore or thereafter issued may continue to express the same number and kind of shares per Warrant as are stated on the Warrant Certificates initially issuable pursuant to this Agreement. (r) SUBSEQUENT EVENT. After an adjustment to the Exercise Rate under this Section, any subsequent event requiring an adjustment under this Section shall cause an adjustment to the Exercise Rate as so adjusted. SECTION 6.12. FRACTIONAL SHARES. The Company shall not be required to deliver fractions of shares of [Preferred Shares] [Common Stock] upon exercises of Warrants. If more than one Warrant shall be surrendered for exercise at one time by the same 23 holder, the number of full shares which shall be deliverable upon exercise thereof shall be computed on the basis of the aggregate of the Warrants so surrendered instead of any fractional share of [Preferred Shares] [Common Stock] which would otherwise be issuable upon exercise of any Warrant or Warrants (or specified portions thereof). The Company shall pay a cash adjustment in respect of such fraction in an amount equal to the same fraction of the market price per share of [Preferred Shares] [Common Stock] (as determined in accordance with Section 6.11(f) or in any other manner prescribed by the Board of Directors) at the close of business on the last Business Day prior to the Date of Exercise.] 24 IN WITNESS WHEREOF, BankBoston Corporation has caused this Warrant Agreement to be signed by one of its duly authorized officers, and its corporate seal to be affixed hereunto, and the same to be attested by its Clerk or one of its Assistant Clerks; and ___________________ has caused this Warrant Agreement to be signed by one of its duly authorized officers, and its corporate seal to be affixed hereunto, and the same to be attested by its Secretary or one of its Assistant Secretaries, all as of the day and year first above written. BANKBOSTON CORPORATION By -------------------------------- Attest: - ------------------------ [Warrant Agent] By -------------------------------- Attest: - ------------------------ 25 EXHIBIT A (Form of Warrant Certificate) [Front Face of Warrant Certificate] [Form of Legend if Prior to ______ this Offered Securities Warrant cannot be with Warrants which transferred or exchanged are not immediately unless attached to a detachable: [Title of Offered Securities].] [Form of Legend if Prior to ________ this Warrants are not Warrant cannot be immediately exercisable: exercised in whole or in part.] EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN. BANKBOSTON CORPORATION PURCHASE WARRANT FOR [Title of Warrant Securities] VOID AFTER THE CLOSE OF BUSINESS IN BOSTON, MASSACHUSETTS ON ___________, 199_. [No.] Warrants This certifies that [the bearer is the] [__________ or registered assigns is the registered] owner of the above indicated number of Warrants, each Warrant entitling such [bearer] [owner] to purchase, at any time [after the close of business on ___________, 199_ and] on or before the close of business on ____________, 199_, [$]__________ [principal amount] [shares] of [Title of Warrant Securities] (the "Warrant Securities") of BankBoston Corporation (the "Company"), issued and to be issued [under the Indenture (as hereinafter defined)] [by the Company], on the following basis: [on __________, 199_,] the exercise price of each Warrant is [$]_______________, [during the period from _________, 199_, through and including ___________, 199_, the exercise price of each Warrant will be [$]___________ plus [accreted original issue discount] [accrued interest] from __________, 199_, on ______________, 199_, the exercise price of each Warrant will be [$]__________, during the period from __________, 199_, through and including _____________, 199_, the exercise price of each Warrant will be 26 [$]________ plus [accreted original issue discount] [accrued interest] from __________, 199_, [in each case, the original issue discount will be accreted at a _ % annual rate, computed on a [semiannual] [annual] basis, using a 360-day year consisting of twelve 30-day months;] [in each case accrued interest will be computed at a rate equal to __%]] (the "Warrant Price")]. [The original issue discount for each [$]_________ principal amount of Warrant Securities is [$]__________]. The [bearer] [owner] may exercise the Warrants evidenced hereby by providing certain information set forth on the back hereof and by paying in full, in lawful money of _______, [in cash or by certified check or official bank check or by bank wire transfer, in each case,] [by bank wire transfer] in immediately available funds, the Warrant Price for each Warrant exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate, with the purchase form on the back hereof duly executed, at the corporate trust office of [name of Warrant Agent] or its successor as warrant agent (the "Warrant Agent"), currently at the address specified on the reverse hereof [or __________,] and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined). Any whole number of Warrants evidenced by this Warrant Certificate may be exercised to purchase Warrant Securities in registered form in [denominations of [$]___________ and any integral multiples thereof] [any number of whole shares]. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the [registered owner] [bearer] hereof a new Warrant Certificate evidencing the number of Warrants remaining unexercised. This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of _____________, 19 _ (the "Warrant Agreement"), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the [registered owner] [bearer] of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent [and at ___________]. [The Warrant Securities to be issued and delivered upon the exercise of the Warrants evidenced by this Warrant Certificate will be issued [by the Company pursuant to the Certificate of Vote applicable to such Warrant Securities] [under and in accordance with an Indenture dated as of June 15, 1992 (the "Indenture"), between the Company and Norwest Bank Minnesota, National Association, as trustee (such trustee, and any successor to such trustee, as amended by the First Supplemental Indenture, 27 dated as of June 24, 1993, to be herein called the "Trustee") and will be subject to the terms and provisions contained in the Indenture. Copies of the Indenture, including the form of the Warrant Securities, are on file at the corporate trust office of the Trustee [and at ________________]].] [IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Prior to ________, 19__ this Warrant Certificate may be exchanged or transferred only together with the [Title of Offered Securities] ("Offered Securities") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. After such date, this Warrant Certificate, and all rights hereunder, may be transferred by delivery and the Company and the Warrant Agent may treat the bearer hereof as the owner for all purposes.] [IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR BEARER WARRANTS ALONE - This Warrant Certificate, and all rights hereunder, may be transferred by delivery and the Company and the Warrant Agent may treat the bearer hereof as the owner for all purposes. [IF OFFERED SECURITIES WITH REGISTERED WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Prior to __________, 19__ this Warrant Certificate may be exchanged or transferred only together with the [Title of Offered Securities] ("Offered Securities") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. After such date, this [IF OFFERED SECURITIES WITH REGISTERED WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR REGISTERED WARRANTS ALONE - This] Warrant Certificate may be transferred when surrendered at the corporate trust office of the Warrant Agent [or ____________] by the registered owner or his assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement.] [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Except as provided in the immediately preceding paragraph, after] [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE - After] countersignature by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent for Warrant Certificates representing the same aggregate number of Warrants. This Warrant Certificate shall not entitle the [registered owner] [bearer] hereof to any of the rights of a registered owner 28 of the Warrant Securities, including, without limitation, the right [to vote or] to receive payments of [dividends or distributions of any kind] [principal of (and premium, if any) or interest, if any, on the Warrant Securities or to enforce any of the covenants of the Indenture.] This Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent. Dated as of __________, 19__ BANKBOSTON CORPORATION By --------------------------------- Attest: - -------------------------- Countersigned: - -------------------------- As Warrant Agent: By ------------------------ Authorized Signature 29 EX-4.H 4 FORM OF DEPOSIT AGREEMENT ================================================================================ BANKBOSTON CORPORATION, ________________________, as Depositary AND THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN ----------------- DEPOSIT AGREEMENT ----------------- Dated as of ____________ , ___199_ ================================================================================ TABLE OF CONTENTS
Page ---- ARTICLE I Definitions..................................................................................................... 1 ARTICLE II Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer, Surrender and Redemption of Receipts ------------------------------------ SECTION 2.01. Form and Transfer of Receipts.................................................................... 3 SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof.......................... 4 SECTION 2.03. Registration of Transfer of Receipts............................................................. 5 SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock............ 5 SECTION 2.05. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts.............. 7 SECTION 2.06. Lost Receipts, etc............................................................................... 7 SECTION 2.07. Cancellation and Destruction of Surrendered Receipts............................................. 7 [SECTION 2.08. Conversion Rights................................................................................ 7] [SECTION 2.09. Redemption or Exchange of Stock.................................................................. 10] ARTICLE III Certain Obligations of Holders of Receipts and the Company ----------------------------------- SECTION 3.01. Filing Proofs, Certificates and Other Information................................................ 12 SECTION 3.02. Payment of Taxes or Other Governmental Charges................................................... 12 SECTION 3.03. Warranty as to Stock............................................................................. 13 SECTION 3.04. Warranty as to Receipts.......................................................................... 13 SECTION 3.05. Warranty as to Capital Securities or Other Preferred Stock....................................... 13 SECTION 3.06. Warrant as to Debt Securities.................................................................... 13
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Page ---- ARTICLE IV The Deposited Securities; Notices --------------------------------- SECTION 4.01. Cash Distributions............................................................................... 14 SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges................................. 14 SECTION 4.03. Subscription Rights, Preferences or Privileges................................................... 15 SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts............................ 16 SECTION 4.05. Voting Rights.................................................................................... 17 SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc............. 17 SECTION 4.07. Delivery of Reports.............................................................................. 18 SECTION 4.08. Lists of Receipt Holders......................................................................... 18 ARTICLE V The Depositary, the Depositary's Agents, the Registrar and the Company ------------------------------------- SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar................. 18 SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company.................................................................... 19 SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company............ 20 SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary................... 21 SECTION 5.05. Corporate Notices and Reports.................................................................... 22 SECTION 5.06. Indemnification by the Company................................................................... 22 SECTION 5.07. Charges and Expenses............................................................................. 22 ARTICLE VI Amendment and Termination ------------------------- SECTION 6.01. Amendment........................................................................................ 23 SECTION 6.02. Termination...................................................................................... 23
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Page ---- ARTICLE VII Miscellaneous ------------- SECTION 7.01. Counterparts..................................................................................... 24 SECTION 7.02. Exclusive Benefit of Parties..................................................................... 24 SECTION 7.03. Invalidity of Provisions......................................................................... 24 SECTION 7.04. Notices.......................................................................................... 24 SECTION 7.05. Depositary's Agents.............................................................................. 25 SECTION 7.06. Holders of Receipts Are Parties.................................................................. 25 SECTION 7.07. Governing Law.................................................................................... 25 SECTION 7.08. Inspection of Deposit Agreement.................................................................. 26 SECTION 7.09. Headings......................................................................................... 26 Form of Depositary Shares ------------------------- Form of Face of Receipt......................................................................................... A-1 Form of Reverse of Receipt...................................................................................... A-2
iii DEPOSIT AGREEMENT dated as of ________________ ___, 199_, among BANKBOSTON CORPORATION, a Massachusetts corporation (the "Company"), _______________________, a _________________ _____________________, and the holders from time to time of the Receipts described herein. WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of shares of [specify designation of series of preferred stock], of BANKBOSTON CORPORATION with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of Receipts evidencing Depositary Shares in respect of the Stock so deposited; and WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement; NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows: ARTICLE I DEFINITIONS The following definitions shall for all purposes, unless otherwise indicated, apply to the respective terms used in this Deposit Agreement: "Capital Securities" means any securities issued by the Company which consist of any one of the following: (i) Common Stock, (ii) Perpetual Preferred Stock, or (iii) other capital securities of the Company acceptable to the Company's Primary Federal Regulator. Capital Securities may have such terms, rights and preferences as may be determined by the Company. "Certificate" shall mean the Certificate of Vote of Directors Establishing a Series of a Class of Stock filed with the Secretary of State of the Commonwealth of Massachusetts establishing the Stock as a series of preferred stock of the Company. "Common Stock" shall mean the common stock, par value $1.00 per share, of the Company or any security into which the Common Stock may have been changed. "Company" shall mean BankBoston Corporation, a Massachusetts corporation, and its successors. "Debt Securities" shall mean the senior or subordinated debt securities of the Company issued in one or more series pursuant to the Indentures. "Deposit Agreement" shall mean this Deposit Agreement, as amended or supplemented from time to time. "Depositary" shall mean ______________________, and any successor as Depositary hereunder. "Depositary Shares" shall mean Depositary shares, each representing [specify fraction] of a share of Stock and evidenced by a Receipt. "Depositary's Agent" shall mean an agent appointed by the Depositary pursuant to Section 7.05. "Depositary's Office" shall mean the principal office of the Depositary, at which at any particular time its depositary receipt business shall be administered. "Indentures" shall mean the Indentures relating to the Debt Securities of the Company, each dated as of June 15, 1992, as amended or supplemented from time to time, and each between the Company and Norwest Bank Minnesota, National Association, as trustee. "Perpetual Preferred Stock" means any stock of any class or series of the Company which has a preference over Common Stock in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not mandatorily redeemable or repayable by the Company, or redeemable or repayable as the option of the holder of such stock, otherwise than in shares of Common Stock or Perpetual Preferred Stock of another class of series or with the proceeds of the sale of Common Stock or Perpetual Preferred Stock. "Primary Federal Regulator" means the Company's primary federal banking regulator (which at the date of this Agreement is the Board of Governors of the Federal Reserve System), or any successor body or institution performing substantially the same regulatory function with respect to the Company and the adequacy of its capital as said Board of Governors performs on the date hereof. "Receipt" shall mean one of the Depositary Receipts, substantially in the form set forth as Exhibit A hereto, issued hereunder, whether in definitive or temporary form and evidencing 2 the number of Depositary Shares held of record by the record holder of such Depositary Shares. "record holder" or "holder" as applied to a Receipt shall mean the person in whose name a Receipt is registered on the books of the Depositary maintained for such purpose. "Registrar" shall mean the Depositary or such other bank or trust company which shall be appointed to register ownership and transfers of Receipts as herein provided. "Securities Act" shall mean the Securities Act of 1933, as amended. "Stock" shall mean shares of the Company's __________ Preferred Stock, Series ____, $_______ liquidation preference per share. ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall be engraved or printed or lithographed on steel-engraved borders, with appropriate insertions, modifications and omissions, as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Company or any holder of Stock, as the case may be, delivered in compliance with Section 2.02, shall execute and deliver temporary Receipts which are printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the persons executing such Receipts may determine, as evidenced by their execution of such Receipts. If temporary Receipts are issued, the Company and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at an office described in the penultimate paragraph of Section 2.02, without charge to the holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered temporary Receipt or Receipts. Such exchange shall be made at the Company's expense and without any charge therefor. Until so exchanged, the temporary Receipts shall in all respects 3 be entitled to the same benefits under this Agreement, and with respect to the Stock, as definitive Receipts. Receipts shall be executed by the Depositary by the manual signature of a duly authorized officer of the Depositary; PROVIDED, that such signature may be a facsimile if a Registrar for the Receipts (other than the Depositary) shall have been appointed and such Receipts are countersigned by a duly authorized officer of the Registrar. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed manually by a duly authorized officer of the Depositary or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by manual or facsimile signature of a duly authorized officer of the Depositary and countersigned by a duly authorized officer of such Registrar. The Depositary shall record on its books each Receipt so signed and delivered as hereinafter provided. Receipts shall be in denominations of any number of whole Depositary Shares. Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange upon which the Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject. Title to Depositary Shares evidenced by a Receipt which is properly endorsed or accompanied by a properly executed instrument of transfer, shall be transferable by delivery with the same effect as in the case of a negotiable instrument; PROVIDED, HOWEVER, that until transfer of a Receipt shall be registered on the books of the Depositary as provided in Section 2.03, the Depositary may, notwithstanding any notice to the contrary, treat the record holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distributions of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes. SECTION 2.02 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement, the Company or any holder of Stock may from time to time deposit shares of the Stock under 4 this Deposit Agreement by delivery to the Depositary of a certificate or certificates for the Stock to be deposited, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement, and together with a written order of the Company or such holder, as the case may be, directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order a Receipt or Receipts for the number of Depositary Shares representing such deposited Stock. Deposited Stock shall be held by the Depositary at the Depositary's office or at such other place or places as the Depositary shall determine. Upon receipt by the Depositary of a certificate or certificates for Stock deposited in accordance with the provisions of this Section, together with the other documents required as above specified, and upon recordation of the Stock on the books of the Company in the name of the Depositary or its nominee, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver, to or upon the order of the person or persons named in the written order delivered to the Depositary referred to in the first paragraph of this Section, a Receipt or Receipts for the number of Depositary Shares representing the Stock so deposited and registered in such name or names as may be requested by such person or persons. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary's Office or such other offices, if any, as the Depositary may designate. Delivery at other offices shall be at the risk and expense of the person requesting such delivery. SECTION 2.03. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms and conditions of this Deposit Agreement, the Depositary shall register on its books from time to time transfers of Receipts upon any surrender thereof by the holder in person or by duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer. Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing the same aggregate number of Depositary Shares as those evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to or upon the order of the person entitled thereto. SECTION 2.04. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or Receipts at the Depositary's Office or at such other offices as it may designate for the purpose of effecting a 5 split-up or combination of such Receipt or Receipts, and subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in the authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered. Any holder of a Receipt or Receipts representing any number of whole shares of Stock may withdraw the Stock and all money and other property, if any, represented thereby by surrendering such Receipt or Receipts, at the Depositary's Office or at such other offices as the Depositary may designate for such withdrawals. Thereafter, without unreasonable delay, the Depositary shall deliver to such holder or to the person or persons designated by such holder as hereinafter provided, the number of whole shares of Stock and all money and other property, if any, represented by the Receipt or Receipts so surrendered for withdrawal, but holders of such whole shares of Stock will not thereafter be entitled to deposit such Stock hereunder or to receive Depositary Shares therefor. If a Receipt delivered by the holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole shares of Stock to be so withdrawn, the Depositary shall at the same time, in addition to such number of whole shares of Stock and such money and other property, if any, to be so withdrawn, deliver to such holder, or upon his order, a new Receipt evidencing such excess number of Depositary Shares. Delivery of the Stock and money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate. If the Stock and the money and other property being withdrawn are to be delivered to a person or persons other than the record holder of the Receipt or Receipts being surrendered for withdrawal of Stock, such holders shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by such holder for withdrawal of such shares of Stock be properly endorsed in blank or accompanied by a properly executed instrument of transfer in blank. Delivery of the Stock and the money and other property, if any, represented by Receipts surrendered for withdrawal shall be made by the Depositary at the Depositary's Office, except that, at the request, risk and expense of the holder surrendering such Receipt or Receipts and for the account of the holder thereof, such delivery may be made at such other place as may be designated by such holder. 6 SECTION 2.05. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution and delivery, registration of transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary's Agents or the Company may require payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made such payment, the reimbursement to it) of any charges or expenses payable by the holder of a Receipt pursuant to Section 5.07, may require the production of evidence satisfactory to it as to the identity and genuineness of any signature and may also require compliance with such regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Deposit Agreement. The deposit of Stock may be refused, the delivery of Receipts against Stock may be suspended, the registration of transfer of Receipts may be refused and the registration of transfer, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the Company is closed or (ii) if any such action is deemed necessary or advisable by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission or under any provision of this Deposit Agreement. SECTION 2.06. LOST RECEIPTS, ETC. In case any receipt shall be mutilated, destroyed, lost or stolen, the Depositary in its discretion may execute and deliver a Receipt of like form and tenor in exchange and substitution for such mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of evidence satisfactory to the Depositary of such destruction or loss or theft of such Receipt, of the authenticity thereof and of his or her ownership thereof and (ii) the furnishing of the Depositary with reasonable indemnification satisfactory to it. SECTION 2.07. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All Receipts surrendered to the Depositary or any Depositary's Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized to destroy all Receipts so cancelled. [SECTION 2.08. CONVERSION RIGHTS. Receipts may be surrendered with written instructions to the Depositary to instruct the Company to cause the conversion of any specified number of whole or fractional shares of Stock represented by the Depositary Shares evidenced by such Receipts into the number of whole shares of Capital Securities or other preferred stock 7 obtained by dividing the aggregate liquidation preference of such Depositary Shares by the Conversion Price (as such term is defined in the Certificate) then in effect, as such Conversion Price may be adjusted by the Company from time to time as provided in the Certificate. Subject to the terms and conditions of this Deposit Agreement and the Certificate, a holder of a Receipt or Receipts evidencing Depositary Shares representing whole or fractional shares of Stock may surrender such Receipt or Receipts to the Depositary at the Depositary's Office or to such office or to such Depositary's Agents as the Depositary may designate for such purpose, together with (i) a notice of conversion thereof duly completed and executed (a "Notice of Conversion"), and (ii) any payment in respect of dividends required by the fourth paragraph of this Section 2.08, thereby directing the Depositary to instruct the Company to cause the conversion of the number of shares or fractions thereof of underlying Stock specified in such Notice of Conversion into whole shares of Capital Securities or other preferred stock. In the event that a holder delivers to the Depositary for conversion a Receipt or Receipts which in the aggregate are convertible into less than one whole share of Capital Securities or other preferred stock or any number of whole shares of Capital Securities or other preferred stock plus an excess constituting less than one whole share of Capital Securities or other preferred stock, the holder shall receive payment in lieu of such fractional shares of Capital Securities or other preferred stock otherwise issuable in accordance with the last paragraph of this Section 2.08. If more than one Receipt shall be delivered for conversion at one time by the same holder, the number of whole shares of Capital Securities or other preferred stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of Receipts so delivered. Upon receipt by the Depositary of a Receipt or Receipts, together with a Notice of Conversion, duly completed and executed, directing the Depositary to instruct the Company to cause the conversion of a specified number of shares or fractions thereof of Stock, the Depositary shall, on the date of receipt of such Notice of Conversion, instruct the Company (i) to cause the conversion of the Depositary Shares evidenced by the Receipts so surrendered for conversion as specified in the written Notice of Conversion to the Depositary and (ii) to cause the delivery to the holder or holders of such Receipts of a certificate or certificates evidencing the number of whole shares of Capital Securities or other preferred stock, and the amount of money, if any, to be delivered to the holders of Receipts surrendered for conversion in payment of any fractional shares of Capital Securities or other preferred stock otherwise issuable. The Company shall, as promptly as practicable after receipt thereof, cause the delivery to such holder or holders of (i) a certificate 8 or certificates evidencing the number of whole shares of Capital Securities or other preferred stock into which the Stock represented by the Depositary Shares evidenced by such Receipt or Receipts has been converted, and (ii) any money or other property to which the holder or holders are entitled. The person or persons in whose name or names any certificate or certificates for shares of Capital Securities or other preferred stock shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the shares represented thereby at the close of business on the date such Receipt or Receipts shall have been surrendered to and a Notice of Conversion received by the Depositary, unless the stock transfer books of the Company shall be closed on that date, in which event such person or persons shall be deemed to have become such holder or holders of record on the next succeeding day on which such stock transfer books are open. Upon such conversion, the Depositary (i) shall deliver to the holder a Receipt evidencing the number of Depositary Shares, if any, which such holder has elected not to convert in excess of the number of Depositary Shares representing Stock which has been so converted, (ii) shall cancel the Depositary Shares evidenced by Receipts surrendered for conversion and (iii) shall deliver for cancellation to the transfer agent for the Stock the shares of Stock represented by the Depositary Shares evidenced by the Receipts so surrendered and so converted. If any Stock shall be called by the Company for redemption or exchange, the Depositary Shares representing such Stock may be converted into Capital Securities or other preferred stock as provided in this Deposit Agreement until and including, but not after, the close of business on the Redemption Date or the Exchange Date (each as defined below) unless the Company shall default in making payment of the amount payable upon such redemption. Upon receipt by the Depositary of a Receipt or Receipts representing any Stock called for redemption or exchange, together with a properly completed and executed Notice of Conversion, the shares of Stock held by the Depositary represented by such Depositary Shares for which conversion is requested shall be deemed to have been received by the Company for conversion. Upon any conversion of the Stock underlying the Depositary Shares, no allowance, adjustment or payment shall be made with respect to accrued dividends upon such Stock except that if any holder of a Receipt surrenders such Receipt with instructions to the Depositary for conversion of the underlying Stock evidenced thereby during the period between the opening of business on any dividend record date and the close of business on the corresponding dividend payment date (except shares called for redemption or exchange on a Redemption Date or Exchange Date 9 during such period), such Receipt must be accompanied by a payment equal to the dividend thereon, if any, which the holder of record of such Receipt is entitled to receive on such dividend payment date in respect of the underlying Stock to be converted. Upon the conversion of any shares of Stock for which a Notice of Conversion has been received by the Depositary, all dividends in respect of such Depositary Shares shall cease to accrue, such Depositary Shares shall be deemed no longer outstanding, all rights of the holder of the Receipt with respect to such Depositary Shares (except the right to receive the Capital Securities or other preferred stock, any cash payable with respect to any fractional shares of Capital Securities or other preferred stock as provided herein and any cash payable on account of accrued dividends in respect of the Stock so converted and any Receipts evidencing Depositary Shares not so converted) shall terminate, and the Receipt evidencing such Depositary Shares shall be cancelled in accordance with Section 2.07 hereof. No fractional shares of Capital Securities or other preferred stock shall be issuable upon conversion of Stock underlying the Depositary Shares. If, except for the provisions of this Section 2.08 and the Certificate, any holder of Receipts surrendered with instructions to the Depositary for conversion of the underlying Stock would be entitled to a fractional share of Capital Securities or other preferred stock upon such conversion, the Company shall cause to be delivered to such holder an amount in cash for such fractional share determined in accordance with the Certificate.] SECTION 2.09. REDEMPTION OR EXCHANGE OF STOCK. Whenever the Company shall be permitted and shall elect to redeem or exchange shares of Stock in accordance with the provisions of the Certificate, it shall (unless otherwise agreed to in writing with the Depositary) give or cause to be given to the Depositary not less than 10 days' and not more than 60 days' notice of the date of such proposed redemption or exchange of Stock and of the number of such shares held by the Depositary to be so redeemed or exchanged and (i) the applicable redemption price or (ii) the class and stated value or tenor and aggregate principal amount of Capital Securities or Debt Securities to be issued in exchange, as set forth in the Certificate, which notice shall be accompanied by a certificate from the Company stating that such redemption or exchange of Stock is in accordance with the provisions of the Certificate. On the date of such redemption or exchange, provided that the Company shall then have paid or caused to be paid in full to the Depositary the redemption price of the Stock to be redeemed or the Capital Securities or Debt Securities to be issued in exchange for stock to be exchanged, plus an amount equal to any accrued and unpaid dividends thereon 10 to the date fixed for redemption or exchange, in accordance with the provisions of the Certificate, the Depositary shall redeem the number of Depositary Shares representing such Stock. The Depositary shall mail notice of the Company's redemption or exchange of Stock and the proposed simultaneous redemption or exchange of the number of Depositary Shares representing the Stock to be redeemed or exchanged by first-class mail, postage prepaid, not less than 10 and not more than 60 days prior to the date fixed for redemption or exchange of such Stock and Depositary Shares (the "Redemption Date" or the "Exchange Date", respectively), to the record holders of the Receipts evidencing the Depositary Shares to be so redeemed or exchanged, at the addresses of such holders as they appear on the records of the Depositary; but neither failure to mail any such notice of redemption or exchange of Depositary Shares to one or more such holders nor any defect in any notice of redemption or exchange of Depositary Shares to one or more such holders shall affect the sufficiency of the proceedings for redemption or exchange as to the other holders. Each such notice shall state: (i) the Redemption Date or Exchange Date; (ii) the number of Depositary Shares to be redeemed or exchanged and, if less than all the Depositary Shares held by any such holder are to be redeemed or exchanged, the number of such Depositary Shares held by such holder to be so redeemed or exchanged; (iii) (a) the redemption price or (b) the class and stated value or tenor and aggregate principal amount of Capital Securities or Debt Securities to be issued in exchange; (iv) the place or places where Receipts evidencing Depositary Shares are to be surrendered for payment of the redemption price; (v) the then current conversion price; and (vi) that dividends in respect of the Stock represented by the Depositary Shares to be redeemed or exchanged will cease to accrue on such Redemption Date or Exchange Rate. In case less than all the outstanding Depositary Shares are to be redeemed or exchanged, the Depositary Shares to be so redeemed or exchanged shall be selected by the Depositary by lot or pro rata (as nearly as may be) or by any other method, in each case, as determined by the Company in its sole discretion to be equitable. Notice having been mailed by the Depositary as aforesaid, from and after the Redemption Date (unless the Company shall have failed to provide the funds or Capital Securities or Debt Securities necessary to redeem or exchange the Stock evidenced by the Depositary Shares called for redemption or exchange) (i) dividends on the shares of Stock so called for Redemption or exchange shall cease to accrue from and after such date, (ii) the Depositary Shares being redeemed or exchanged from such proceeds shall be deemed no longer to be outstanding, (iii) all rights of the Holders of Receipts evidencing such Depositary Shares (except the right to receive the Redemption Price) shall, to the extent of such Depositary Shares, cease and terminate, and 11 (iv) upon surrender in accordance with such redemption or exchange notice of the Receipts evidencing any such Depositary Shares called for redemption or exchange (properly endorsed or assigned for transfer, in the Depositary or applicable law shall so require), such Depositary Shares shall be redeemed or exchanged by the Depositary at a redemption price per Depositary Share equal to [specify fraction] of the redemption price per share or market value of Capital Securities or Debt Securities per Depositary Share paid in respect of the shares of Stock so redeemed or exchanged plus all money and other property, if any, represented by such Depositary Shares, including all amounts paid by the Company in respect of dividends which on the Redemption Date or Exchange Date have accumulated on the shares of Stock to be so redeemed or exchanged and have not therefore been paid. If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption or exchange, the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary, together with the redemption payment or Capital Securities or Debt Securities issued upon exchange, a new Receipt evidencing the Depositary Shares evidenced by such prior receipt and not called for redemption or exchange. ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any holder of a Receipt may be required from time to time to file such proof of residence, or other matters or other information, to execute such certificates and to make such representations and warranties as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold the delivery, or delay the registration of transfer, redemption or exchange, of any Receipt or the withdrawal or conversion of the Stock represented by the Depositary Shares evidenced by any Receipt or the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof until such proof or other information is filed or such certificates are executed or such representations and warranties are made. SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders of Receipts shall be obligated to make payments to the Depositary of certain charges and expenses, as provided in Section 5.07. Registration of transfer of any Receipt or any withdrawal of Stock and all money or other property, if any, represented by the Depositary Shares evidenced 12 by such Receipt may be refused until any such payment due is made, and any dividends, interest payments or other distributions may be withheld or any part of or all the Stock or other property represented by the Depositary Shares evidenced by such Receipt and not theretofore sold may be sold for the account of the holder thereof (after attempting by reasonable means to notify such holder prior to such sale), and such dividends, interest payments or other distributions or the proceeds of any such sale may be applied to any payment of such charges or expenses, the holder of such Receipt remaining liable for any deficiency. SECTION 3.03. WARRANTY AS TO STOCK. The Company hereby represents and warrants that the Stock, when issued, will be duly authorized, validly issued, fully paid and nonassessable, subject to Massachusetts General Laws, Chapter 156B, Section 45. Such representation and warranty shall survive the deposit of the Stock and the issuance of Receipts. SECTION 3.04. WARRANTY AS TO RECEIPTS. The Company hereby represents and warrants that the Receipts, when issued, will represent legal and valid interests in the Stock. Such representation and warranty shall survive the deposit of the Stock and the issuance of Receipts. SECTION 3.05. WARRANTY AS TO CAPITAL SECURITIES OR OTHER PREFERRED STOCK. The Company hereby represents and warrants that the Capital Securities or other preferred stock issued upon conversion of the Stock, when issued, will be duly authorized, validly issued, fully paid and nonassessable, subject to Massachusetts General Laws, Chapter 156B, Section 45. Such representation and warranty shall survive the conversion of the Stock into such Capital Securities or other preferred stock. SECTION 3.06. WARRANT AS TO DEBT SECURITIES. The Company hereby represents and warrants that (i) Debt Securities issued upon exchange of the Stock, when issued, will be duly authorized and, when such Debt Securities are duly executed, authenticated and delivered in the manner provided for in the applicable Indenture, such Debt Securities will constitute valid and binding obligations of the Company entitled to the benefits of the applicable Indenture and enforceable against the Company in accordance with their terms, and (ii) the applicable Indenture has been duly authorized by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except in each case as enforcement thereof may be limited by the receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as 13 enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and the availability of equitable remedies. Such representation and warranty shall survive the exchange of the Stock for such Debt Securities. ARTICLE IV THE DEPOSITED SECURITIES; NOTICES SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive any cash dividend or other cash distribution on Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of such dividend or distribution as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders; PROVIDED, HOWEVER, that in case the Company or the Depositary shall be required to withhold and shall withhold from any cash dividend or other cash distribution in respect of the Stocks an amount on account of taxes, the amount made available for distribution or distributed in respect of Depositary Shares shall be reduced accordingly. The Depositary shall distribute or make available for distribution, as the case may be, only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by the Depositary for distribution to record holders of Receipts then outstanding. SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR PRIVILEGES. Whenever the Depositary shall receive any distribution other than cash, rights, preferences or privileges upon Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution. If in the opinion of the Depositary such distribution cannot be made proportionately among such record holders, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes) the Depositary deems, after consultation with the Company, such distribution not to be feasible, the Depositary may, with the approval of the 14 Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received, or any part thereof, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be distributed or made available for distribution, as the case may be, by the Depositary to record holders of Receipts as provided by Section 4.01 in the case of a distribution received in cash. The Company shall not make any distribution of such securities or property to the Depositary and the Depositary shall not make any distribution of such securities or property to the holders of Receipts unless the Company shall have provided an opinion of counsel stating that such securities or property have been registered under the Securities Act or do not need to be registered in connection with such distributions. SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall at any time offer or cause to be offered to the persons in whose names Stock is recorded on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, preferences or privileges of any other nature, such rights, preferences or privileges shall in each such instance be made available by the Depositary to the record holders of Receipts in such manner as the Depositary may determine, either by the issue to such record holders of warrants representing such rights, preferences or privileges or by such other method as may be approved by the Depositary in its discretion with the approval of the Company; PROVIDED, HOWEVER, that (i) if at the time of issue or offer of any such rights, preferences or privileges the Depositary determines that it is not lawful or (after consultation with the Company) not feasible to make such rights, preferences or privileges available to holders of Receipts by the issue of warrants or otherwise, or (ii) if and to the extent so instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges, then the Depositary, in its discretion (with approval of the Company, in any case where the Depositary has determined that it is not feasible to make such rights, preferences or privileges available), may, if applicable laws or the terms of such rights, preferences or privileges permit such transfer, sell such rights, preferences or privileges at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be distributed by the Depositary to the record holders of Receipts entitled thereto as provided by Section 4.01 in the case of a distribution received in cash. 15 If registration under the Securities Act of the securities to which any rights, preferences or privileges relate is required in order for holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, the Company agrees with the Depositary that it will file promptly a registration statement pursuant to such Act with respect to such rights, preferences or privileges and securities and use its best efforts and take all steps available to it to cause such registration statement to become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the holders of Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such registration statement shall have become effective, or unless the offering and sale of such securities to such holders are exempt from registration under the provisions of the Securities Act, and the Company shall have provided to the Depositary an opinion of counsel to such effect. If any other action under the laws of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to holders of Receipts, the Company agrees with the Depositary that the Company will use its reasonable best efforts to take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING RECORD DATE FOR HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or if rights, preferences or privileges shall at any time be offered, with respect to Stock, or whenever the Depositary shall receive notice of any meeting at which holders of Stock are entitled to vote or of which holders of Stock are entitled to notice, or whenever the Depositary and the Company shall decide it is appropriate, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to or otherwise in accordance with the terms of the Stock) for the determination of the holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting, or who shall be entitled to notice of such meeting or for any other appropriate reasons. 16 SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting at which the holders of Stock are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the record holders of Receipts a notice which shall contain (i) such information as is contained in such notice of meeting and (ii) a statement that the holders may, subject to any applicable restrictions, instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Stock represented by their respective Depositary Shares (including an express indication that instructions may be given to the Depositary to give a discretionary proxy to a person designated by the Company) and a brief statement as to the manner in which such instructions may be given. Upon the written request of the holders of Receipts on the relevant record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of whole shares of Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular voting instructions are received. The Company hereby agrees to take all reasonable action which may be deemed necessary by the Depositary in order to enable the Depositary to vote such Stock or cause such Stock to be voted. In the absence of specific instructions from the holder of a Receipt, the Depositary will not vote (but, at its discretion, may appear at any meeting with respect to such Stock unless directed to the contrary by the holders of all the Receipts) to the extent of the Stock represented by the Depositary Shares evidenced by such Receipt. SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated value, split-up, combination or any other reclassification of the Stock, or upon any recapitalization, reorganization, merger or consolidation affecting the Company or to which it is a party, the Depositary may in its discretion with the approval of, and shall upon the instructions of, the Company, and (in either case) in such manner as the Depositary may deem equitable, (i) make such adjustments as are certified by the Company in the fraction of an interest represented by one Depositary Share in one share of Stock as may be necessary fully to reflect the effects of such change in par or stated value, split-up, combination or other reclassification of Stock, or of such recapitalization, reorganization, merger or consolidation and (ii) treat any securities which shall be received by the Depositary in exchange for or upon conversion of or in respect of the Stock as new deposited securities so received in exchange for or upon conversion or in respect of such Stock. In any such case the Depositary may in its discretion, with the approval of the Company, execute and deliver additional Receipts or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited securities. Anything to the contrary herein notwithstanding, holders of Receipts shall have the right from and after the effective date of any such change in par or stated value, split-up, combination or other reclassification of the Stock or any such recapitalization, reorganization, merger or consolidation to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the Stock represented thereby only into or for, as the case may be, the kind and amount of shares of stock and other securities and property and cash into which the Stock represented by such Receipts might have been converted or for which such Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction. SECTION 4.07. DELIVERY OF REPORTS. The Depositary shall furnish to holders of Receipts any reports and communications received from the Company which are received by the Depositary as the holder of Stock. SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from time to time by the Company, the Depositary shall furnish to it a list, as of the most recent practicable date, of the names, addresses and holdings of Depositary Shares of all record holders of Receipts. 17 ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the Depositary shall maintain at the Depositary's Office, facilities for the execution and delivery, registration and registration of transfer, surrender and exchange of Receipts, and at the offices of the Depositary's Agents, if any, facilities for the delivery, registration of transfer, surrender and exchange of Receipts, all in accordance with the provisions of this Deposit Agreement. The Depositary shall keep books at the Depositary's Office for the registration and registration of transfer of Receipts, which books at all reasonable times shall be open for inspection by the record holders of Receipts; PROVIDED that any such holder requesting to exercise such right shall certify to the Depositary that such inspection shall be for a proper purpose reasonably related to such person's interest as an owner of Depositary Shares evidenced by the Receipts. The Depositary may close such books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder. The Depositary may, with the approval of the Company, appoint a Registrar for registration of the Receipts or the Depositary Shares evidenced thereby. If the Receipts or the Depositary Shares evidenced thereby or the Stock represented by such Depositary Shares shall be listed on one or more national stock exchanges, the Depositary will appoint a Registrar (acceptable to the Company) for registration of such Receipts or Depositary Shares in accordance with any requirements of such exchange. Such Registrar (which may be the Depositary if so permitted by the requirements of any such exchange) may be removed and a substitute registrar appointed by the Depositary upon the request or with the approval of the Company. If the Receipts, such Depositary Shares or such stock are listed on one or more other stock exchanges, the Depositary will, at the request of the Company, arrange such facilities for the delivery, registration, registration of transfer, surrender and exchange of such Receipts, such Depositary Shares or such stock as may be required by law or applicable stock exchange regulation. SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall incur any liability to any holder of any Receipt if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary's Agent or the Registrar, by reason of any provision, present or future, of the Company's Articles of Organization, as amended (including the Certificate) or by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, the Depositary's Agent, the Registrar or the Company shall be prevented or forbidden from, or subjected to any penalty on account of, doing or performing any act or thing which the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Company incur liability to any holder of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which the terms of this Deposit Agreement shall provide shall or may be done or performed, or (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement except, in the case of any such exercise or failure to exercise discretion not caused as aforesaid, if caused by the negligence or willful misconduct of the party charged with such exercise or failure to exercise. 18 SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders of Receipts other than for its negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be under, any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be liable for any action or any failure to act by it in reliance upon the written advice of legal counsel or accountants, or information from any person presenting Stock for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary's Agent, any Registrar and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of stock or for the manner or effect of any such vote made, as long as any such action or non-action is in good faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Depositary or any Registrar. The Depositary will indemnify the Company and hold it harmless from any loss, liability or expense (including the reasonable costs and expenses of defending itself) which may arise out of acts performed or omitted by the Depositary or the Depositary's Agents in connection with this Agreement due to its or their negligence, willful misconduct or bad faith. The indemnification obligations of the Depositary set forth in this Section 5.03 shall survive any termination of this Agreement and any succession of any Depositary. The Depositary, the Depositary's Agents, and any Registrar may own and deal in any class of securities of the Company and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates. 19 SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary hereunder by delivering notice of its election to do so to the Company, such resignation to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. The Depositary may at any time be removed by the Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depositary shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depositary may petition any court of competent jurisdiction for the appointment of a successor Depositary. Every successor Depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys or property held hereunder to such successor, and shall deliver to such successor a list of the record holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any successor Depositary shall promptly mail notice of its appointment to the record holders of Receipts. Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depositary may authenticate the Receipts in the name of the predecessor Depositary or in the name of the successor Depositary. 20 SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that it will transmit to the record holders of Receipts, in each case at the addresses furnished to it pursuant to Section 4.08, all notices and reports (including without limitation financial statements) required by law or by the rules of any national securities exchange upon which the Stock, the Depositary Shares or the Receipts are listed, to be furnished to the record holders of Receipts. Such transmission will be at the Company's expense. SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify the Depositary, any Depositary's Agent and any Register against, and hold each of them harmless from, any loss, liability or expense (including the reasonable costs and expenses of defending itself) which may arise out of acts performed or omitted in connection with this Agreement and the Receipts by the Depositary, any Registrar or any of their respective agents (including any Depositary's Agent), except for any liability arising out of negligence, willful misconduct or bad faith on the respective parts of any such person or persons. The obligations of the Company set forth in this Section 5.06 shall survive any succession of any Depositary, Registrar or Depositary's Agent. SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all transfer and other taxes and governmental charges arising solely from the existence of the depository arrangements. The Company shall pay all charges of the Depositary in connection with the initial deposit of the Stock and the initial issuance of the Depositary Shares, all withdrawals of shares of the Stock by owners of Depositary Shares, and any redemption or exchange of the Stock at the option of the Company. All other transfer and other taxes and governmental charges shall be at the expense of holders of Depositary Shares. If, at the request of a holder of Receipts, the Depositary incurs charges or expenses for which it is not otherwise liable hereunder, such holder will be liable for such charges and expenses. All other charges and expenses of the Depositary and Depositary's Agent hereunder and of any Registrar (including, in each case, reasonable fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be paid upon consultation and agreement between the Depositary and the Company as to the amount and nature of such charges and expenses. The Depositary shall present its statement for charges and expenses to the Company at such intervals as the Company and the Depositary may agree. 21 ARTICLE VI AMENDMENT AND TERMINATION SECTION 6.01. AMENDMENT. The form of the Receipts and any provisions of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable; PROVIDED, HOWEVER, that no such amendment (other than any change in the fees of any Depositary, Registrar or Transfer Agent, which shall go into effect not sooner than three months after notice thereof to the holders of the Receipts) which shall materially and adversely alter the rights of the holders of Receipts shall be effective unless such amendment shall have been approved by the holders of at least a majority of the Depositary Shares Lien outstanding. Every holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such receipt, to consent and agree to such amendment and to be bound by the Depositary Agreement as amended thereby. SECTION 6.02. TERMINATION This Agreement may be terminated by the Company at any time upon not less than 60 days prior written notice to the Depositary, in which case, upon a day that is not later than 30 days after the date of such notice, the Depositary shall deliver or make available for delivery to such record holder, upon surrender of the Receipt or Receipts held by such record holder, such number of whole or fractional shares of stock represented by such Receipt or Receipts. If the record holder of any Receipt or Receipts shall not have so surrendered such Receipt or Receipts in exchange for whole or fractional shares of Stock on or prior to the effective date of termination of this Agreement, such record holder shall for all purposes, including the payment of dividends, be deemed to be a record holder of the appropriate number of whole or fractional shares of Stock previously represented by such Receipt or Receipts and shall thereafter surrender to the Company such Receipt or Receipts in exchange for whole or fractional shares of Stock. This Agreement shall automatically terminate after [(i) all outstanding Depositary Shares have been redeemed pursuant to Section 3.09, (ii) each share of Stock shall have been converted into or exchanged for, as the case may be, shares of Capital Securities, other preferred stock or Debt securities and (iii)] there shall have been made a final distribution in respect of the Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the holders of Depositary Shares pursuant to Section 4.01 or 4.02, as applicable. 22 Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary, and Depositary's Agent and any Registrar under Sections 5.06 and 5.07. ARTICLE VII MISCELLANEOUS SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. SECTION 7.04. NOTICES. Any and all notices to be given to the Company hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or facsimile transmission confirmed by letter, addressed to the Company at BankBoston Corporation 100 Federal Street, Mail Stop 01-25-01 Boston, Massachusetts 02110 Attention: Clerk Facsimile No.: (617) 434-6525 or at any other address of which the Company shall have notified the Depositary in writing. Any and all notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by 23 mail, or by telegram or facsimile transmission confirmed by letter, addressed to the Depositary at the Depositary's Office, at ____________________, or at any other address of which the Depositary shall have notified the Company in writing. Any and all notices to be given to any record holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or facsimile transmission confirmed by letter, addressed to such record holder at the address of such record holder as it appears on the books of the Depositary, or if such holder shall have filed with the Depositary a written request that notices intended for such holder be mailed to some other address, at the address designated in such request. Delivery of a notice sent by mail or by telegram or facsimile transmission shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a telegram or facsimile transmission) is deposited, postage prepaid, in a post office letter box. The Depositary or the Company may, however, act upon any telegram or facsimile transmission received by it from the other or from any holder of a Receipt, notwithstanding that such telegram or facsimile transmission shall not subsequently be confirmed by letter or as aforesaid. SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to time appoint Depositary's Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary's Agents. The Depositary will notify the Company of any such action. The Company hereby also appoints the Depositary as Registrar and Transfer Agent in respect of the Receipts and the Depositary hereby accepts such appointments. SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery thereof. SECTION 7.07. GOVERNING LAW. This Deposit Agreement and the Receipts and all Receipts hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts 24 SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Depositary's Office and the respective offices of the Depositary's Agents, if any, by any holder of a Receipt. SECTION 7.09. HEADINGS. The headings of articles and sections in this Deposit Agreement, and in the form of the Receipt set forth in Exhibit A hereto have been inspected for convenience only and are not to be regarded as a part of this Deposit Agreement or the Receipts or to have any bearing upon the meaning or interpretation of any provision contained herein or in the Receipts. IN WITNESS WHEREOF, the Company and the Depositary have duly executed this Agreement as of the day and year first above and forth, and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof. Attested By BANKBOSTON CORPORATION ________________________ By____________________ [SEAL] Attested By [Name of Depositary] ________________________ By____________________ [SEAL] 25 EXHIBIT A [FORM OF FACE OF RECEIPT] NUMBER DEPOSITARY SHARES CERTIFICATE FOR _______________ DEPOSITARY SHARES TDR DEPOSITORY RECEIPT FOR DEPOSITARY SHARES REPRESENTING [TITLE OF] PREFERRED STOCK OF BANKBOSTON CORPORATION CUSIP ______ INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR CERTAIN THE COMMONWEALTH OF MASSACHUSETTS DEFINITIONS ___________, as Depositary ("The "Depositary"), hereby certifies that is the registered owner of DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing (specify fraction) of one share of ____ Preferred Stock "the "Stock"), of BankBoston Corporation, a Massachusetts corporation (the "Corporation"), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement deposited as of _________, 199_ (the "Deposit Agreement"), between the Corporation and the Depositary. By accepting this Depositary Receipt the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Depositary Receipt shall not be valid or, obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual signature of a duly authorized officer or, if executed in facsimile by the Depositary, countersigned by a Registrar in respect of the Depositary Receipts by a duly authorized officer thereof. Dated: [Countersigned: - ----------------------------------- ----------------------------------- Depositary Registrar By By Authorized Officer Authorized Officer] A-1 [FORM OF REVERSE OF RECEIPT] BANKBOSTON CORPORATION BANKBOSTON CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING A SERIES OF A CLASS OF STOCK OF THE [TITLE OF] PREFERRED STOCK OF BANKBOSTON CORPORATION. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT. ----------------- For value received, _______________ hereby sell(s), assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE - -------------------- -------------------- -------------------- - ---------------------------------------------------- PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE - -------------------- -------------------- -------------------- ___________________________________ Depositary Shares represented by the within Receipt, and do(es) hereby irrevocably constitute and appoint _________________ Attorney to transfer the said Depositary Shares on the books of the within named Depositary with full power of substitution in the premises. Dated ______________ ---------------------------------------- NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Receipt in every particular, without alteration or enlargement or any change whatever. SIGNATURE GUARANTEED - -------------------- A-2 EX-5 5 OPINION OF GARY SPIESS EXHIBIT 5 November 13, 1998 BankBoston Corporation 100 Federal Street Boston, Massachusetts 02110 Re: BANKBOSTON CORPORATION REGISTRATION STATEMENT ON FORM S-3 RELATING TO $1,215,000,000 OF DEBT AND EQUITY SECURITIES, INCLUDING SENIOR AND SUBORDINATED DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK, WARRANTS TO PURCHASE DEBT SECURITIES, PREFERRED STOCK AND COMMON STOCK, AND CAPITAL SECURITIES. Ladies and Gentlemen: This opinion is rendered to you in connection with the filing by BankBoston Corporation, a Massachusetts corporation (the "Corporation"), of its Registration Statement on Form S-3 (the "Registration Statement") with the Securities and Exchange Commission relating to the registration of $1,215,000,000 in the aggregate of debt and equity securities, including (i) debt securities which may be either senior (the "Senior Securities") or subordinated (the "Subordinated Securities"; and collectively with the Senior Securities, the "Debt Securities") and warrants to purchase the Debt Securities (the "Debt Warrants"); (ii) shares of preferred stock (the "Preferred Stock"), which may be issued in the forms of depositary shares evidenced by depositary receipts (the "Depositary Shares"), and warrants to purchase shares of the Preferred Stock (the "Preferred Stock Warrants"); (iii) shares of common stock, par value $1.00 per share (the "Common Stock") and warrants to purchase the Common Stock (the "Common Stock Warrants") (the Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Debt Warrants, Preferred Stock Warrants and Common Stock Warrants being collectively referred to herein as the "Securities"); (iv) an indeterminate number of (a) shares of Preferred Stock (the "Additional Preferred Stock"), (b) shares of common stock, perpetual Preferred Stock or other capital securities of the Corporation acceptable to the Corporation's primary federal banking regulator (collectively, the "Capital Securities") as may be issuable in exchange for or upon conversion of the Preferred Stock or the Subordinated Securities, (c) Debt Securities (the "Additional Debt Securities") as may be issuable in exchange for the Preferred Stock and (d) shares of Common Stock (the "Additional Common Stock") which may be issuable upon conversion or exchange of the Preferred Stock or Debt Securities; for one or more offerings to be made on a continuous or delayed basis pursuant to the provisions of Rule 415. In connection with the filing of such Registration Statement, I have been asked to give my opinion, in my capacity as General Counsel of the Corporation, as to the legality of the Securities, the Additional Preferred Stock, the Capital Securities, the Additional Debt Securities and the Additional Common Stock being registered (collectively, the "Registered Securities"). In rendering this opinion as General Counsel of the Corporation, I and attorneys in my office acting under my direction have participated with the Corporation and its officers in the preparation, review and filing of the Registration Statement and the related prospectus (the "Prospectus"), have examined the indenture dated as of June 15, 1992 between the Corporation and Norwest Bank Minnesota, National Association ("Norwest") relating to the Senior Securities (the "Senior Indenture") and the indenture dated as of June 15, 1992 between the Corporation and Norwest relating to the Subordinated Securities, as amended by the First Supplemental Indenture dated June 24, 1993 (together the "Subordinated Indenture"; and collectively with the Senior Indenture, the "Indentures"), have examined the other exhibits to the Registration Statement, have examined other corporate documents and records, have made such examination of law, and have discussed with the officers and directors of the Corporation, its subsidiaries and Norwest such questions of fact as we have deemed necessary or appropriate. We have also relied upon the certificates and statements of such officers and directors and of Norwest as to factual matters and have assumed the genuineness of all signatures not known to us as well as the authenticity of all documents submitted to us as copies. Based upon and subject to the foregoing and subject to certain proposed additional proceedings being taken as now contemplated prior to the issuance of the Registered Securities, and subject to the terms of the Registered Securities being otherwise in compliance with then applicable law, it is my opinion that: (i) The Preferred Stock, Depositary Shares and Common Stock to be issuable under the Registration Statement will have been duly authorized and reserved and upon their issuance and sale in the manner referred to in the Registration Statement will be duly issued, fully paid and non- assessable, except as provided by Section 45 of Chapter 156B of the Massachusetts General Laws ("MGL C.156B Section 45"); (ii) The Debt Securities, Debt Warrants, Preferred Stock Warrants and Common Stock Warrants, upon their issuance and sale in the manner referred to in the Registration Statement, will be duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Corporation enforceable in accordance with their terms, subject to bank regulatory, bankruptcy insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors rights or to general equity principles (regardless of whether such matters are considered in a proceeding in equity or at law) (collectively the "Limitations on Enforceability"); (iii) To the extent provided in the applicable Prospectus Supplement (the "Prospectus Supplement"), the Preferred Stock may be convertible into Additional Preferred Stock or exchangeable for Additional Debt Securities or Additional Common Stock, in accordance with the terms thereof and of the applicable Certificate of Vote of Directors Establishing a Series of a Class of Stock ("Certificate of Vote") and the Debt Securities may be convertible into or exchangeable for Additional Preferred Stock or Additional Common Stock; and (a) any Additional Preferred Stock or Additional Common Stock initially issuable upon conversion or exchange of the Preferred Stock or Debt Securities will have been duly authorized and reserved and when issued upon such conversion, will be duly issued, fully paid and non-assessable, except as provided by MGL C.156B Section 45; (b) any Additional Debt Securities initially issuable in exchange for the Preferred Stock, when issued upon such exchange, will be duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Corporation enforceable in accordance with their terms, subject to the Limitations on Enforceability; and (iv) To the extent provided in the applicable Prospectus Supplement, the Subordinated Securities and the Preferred Stock may be convertible into or exchangeable for Capital Securities, in accordance with the terms thereof, and the terms of the Subordinated Indenture or the Certificate of Vote, as applicable; and any Capital Securities initially issuable upon conversion of, or exchange for, the Subordinated Securities or the Preferred Stock, (a) to the extent such Capital Securities consist of common stock, perpetual preferred stock or other equity securities of the Corporation, will have been duly authorized and reserved and when issued upon such conversion or exchange, will be duly issued, fully paid and non-assessable, except as provided by MGL C. 156B Section 45; and (b) to the extent such Capital Securities consist of debt securities of the Corporation, will have been duly executed, authenticated, issued and delivered and, when issued upon such conversion or exchange, will constitute valid and legally binding obligations of the Corporation enforceable in accordance with their terms, subject to the Limitations on Enforceability. I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to the use of my name in the Registration Statement, the related Prospectus and any Prospectus Supplement relating thereto. Very truly yours, /s/ GARY A. SPIESS Gary A. Spiess General Counsel EX-23.A 6 CONSENT OF PRICEWATERHOUSECOOPERS, LLP Exhibit 23(a) Consent of Independent Accountants To The Board of Directors BankBoston Corporation We consent to the incorporation by reference, in this registration statement of BankBoston Corporation on Form S-3 of our report dated January 15, 1998 on our audits of the consolidated financial statements of BankBoston Corporation and Subsidiaries as of December 31, 1997 and 1996, and for each of the years in the three-year period ended December 31, 1997 included in the Corporation's 1997 Annual Report to Stockholders and in Exhibit 13 to the Corporation's 1997 Annual Report on Form 10-K. We also consent to the reference to our firm under the caption "Experts." The consolidated financial statements of BayBanks, Inc. for the year ended December 31, 1995, prior to the restatement for the 1996 pooling of interests, included in the 1995 restated consolidated financial statements. We audited the combination of the accompanying consolidated statements of income, changes in stockholders' equity and cash flows for the years ended December 31, 1995, after restatement for the 1996 pooling of interests; in our opinion, such consolidated financial statements have been properly combined on the basis described in Note 2 to the financial statements. PricewaterhouseCoopers LLP Boston, Massachusetts November 16, 1998 EX-24 7 POWER OF ATTORNEY Exhibit 24 POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, this Power of Attorney has been signed by the following persons in the capacities and on the dates indicated. By so signing, each of the undersigned, in his or her capacity as a director or officer, or both, as the case may be, of BankBoston Corporation (the "Corporation"), does hereby appoint Charles K. Gifford, Henrique de Campos Meirelles, Susannah M. Swihart, Kathleen M. McGillycuddy, Robert T. Jefferson and Gary A. Spiess, and each of them severally, or if more than one acts, a majority of them, his or her true and lawful attorneys or attorney to execute in his or her name, place and stead, in his or her capacity as a director or officer or both, as the case may be, of the Corporation, the Registration Statement on Form S-3 to be filed with the Securities and Exchange Commission (the "Commission") with respect to the shelf registration of $1,500,000,000 of debt and equity securities to be offered by the Corporation from time to time and all instruments necessary or incidental in connection therewith, and to file the same with the Commission. Each of said attorneys shall have full power and authority to do and perform in the name and on behalf of each of the undersigned, in any and all capacities, every act whatsoever requisite or necessary to be done in the premises as fully and to all intents and purposes as each of the undersigned might or could do in person, hereby ratifying and approving the acts of said attorneys and each of them.
SIGNATURE TITLE DATE --------- ----- ---- Chairman and Chief Executive Officer and Director September 24, 1998 /s/ CHARLES K. GIFFORD (Chief Executive Officer) - ----------------------------------- (Charles K. Gifford) President and Chief /s/ HENRIQUE de CAMPOS MEIRELLES Operating Officer and September 23, 1998 - ----------------------------------- Director (Henrique de Campos Meirelles) Vice Chairman, /s/ SUSANNAH M. SWIHART Chief Financial Officer September 23, 1998 - ----------------------------------- and Treasurer (Susannah M. Swihart) (Chief Financial Officer) /s/ ROBERT T. JEFFERSON Comptroller September 24, 1998 - ----------------------------------- (Chief Accounting Officer) (Robert T. Jefferson)
SIGNATURE TITLE DATE --------- ----- ---- /s/ WAYNE A. BUDD Director September 24, 1998 - ----------------------------------------------- (Wayne A. Budd) /s/ WILLIAM F. CONNELL Director September 24, 1998 - ----------------------------------------------- (William F. Connell) /s/ GARY L. COUNTRYMAN Director September 24, 1998 - ----------------------------------------------- (Gary L. Countryman) /s/ WILLIAM M. CROZIER, JR. Director September 24, 1998 - ----------------------------------------------- (William M. Crozier, Jr.) /s/ ALICE F. EMERSON Director September 24, 1998 - ----------------------------------------------- (Alice F. Emerson) /s/ THOMAS J. MAY Director September 24, 1998 - ----------------------------------------------- (Thomas J. May) /s/ DONALD F. MCHENRY Director September 24, 1998 - ----------------------------------------------- (Donald F. McHenry) /s/ PAUL C. O'BRIEN Director September 24, 1998 - ----------------------------------------------- (Paul C. O'Brien) /s/ THOMAS R. PIPER Director September 24, 1998 - ----------------------------------------------- (Thomas R. Piper) /s/ FRANCENE S. RODGERS Director September 24, 1998 - ----------------------------------------------- (Francene S. Rodgers) /s/ JOHN W. ROWE Director September 24, 1998 - ----------------------------------------------- (John W. Rowe) /s/ GLENN P. STREHLE Director September 24, 1998 - ----------------------------------------------- (Glenn P. Strehle) /s/ WILLIAM C. VAN FAASEN Director September 24, 1998 - ----------------------------------------------- (William C. Van Faasen) /s/ THOMAS B. WHEELER Director September 24, 1998 - ----------------------------------------------- (Thomas B. Wheeler) /s/ ALFRED M. ZEIEN Director September 24, 1998 - ----------------------------------------------- (Alfred M. Zeien)
EX-25 8 FORM T-1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _____________________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE _____________________________ _____ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2) NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) A U.S. NATIONAL BANKING ASSOCIATION 41-1592157 (Jurisdiction of incorporation or (I.R.S. Employer organization if not a U.S. national Identification No.) bank) SIXTH STREET AND MARQUETTE AVENUE Minneapolis, Minnesota 55479 (Address of principal executive offices) (Zip code) Stanley S. Stroup, General Counsel NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION Sixth Street and Marquette Avenue Minneapolis, Minnesota 55479 (612) 667-1234 (Agent for Service) _____________________________ BANKBOSTON CORPORATION (Exact name of obligor as specified in its charter) MASSACHUSETTS 04-2471221 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 100 FEDERAL STREET BOSTON, MASSACHUSETTS 02110 (Address of principal executive offices) (Zip code) _____________________________ DEBT SECURITIES Item 1. General Information. Furnish the following information as to the -------------------- trustee: (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency Treasury Department Washington, D.C. Federal Deposit Insurance Corporation Washington, D.C. The Board of Governors of the Federal Reserve System Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the -------------------------- trustee, describe each such affiliation. None with respect to the trustee. No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13. Item 15. Foreign Trustee. Not applicable. ---------------- Item 16. List of Exhibits. List below all exhibits filed as a part of this ----------------- Statement of Eligibility. Norwest Bank incorporates by reference into this Form T-1 the exhibits attached hereto. Exhibit 1. a. A copy of the Articles of Association of the trustee now in effect.* Exhibit 2. a. A copy of the certificate of authority of the trustee to commence business issued June 28, 1872, by the Comptroller of the Currency to The Northwestern National Bank of Minneapolis.* b. A copy of the certificate of the Comptroller of the Currency dated January 2, 1934, approving the consolidation of The Northwestern National Bank of Minneapolis and The Minnesota Loan and Trust Company of Minneapolis, with the surviving entity being titled Northwestern National Bank and Trust Company of Minneapolis.* c. A copy of the certificate of the Acting Comptroller of the Currency dated January 12, 1943, as to change of corporate title of Northwestern National Bank and Trust Company of Minneapolis to Northwestern National Bank of Minneapolis.* d. A copy of the letter dated May 12, 1983 from the Regional Counsel, Comptroller of the Currency, acknowledging receipt of notice of name change effective May 1, 1983 from Northwestern National Bank of Minneapolis to Norwest Bank Minneapolis, National Association.* e. A copy of the letter dated January 4, 1988 from the Administrator of National Banks for the Comptroller of the Currency certifying approval of consolidation and merger effective January 1, 1988 of Norwest Bank Minneapolis, National Association with various other banks under the title of "Norwest Bank Minnesota, National Association."* Exhibit 3. A copy of the authorization of the trustee to exercise corporate trust powers issued January 2, 1934, by the Federal Reserve Board.* Exhibit 4. Copy of By-laws of the trustee as now in effect.* Exhibit 5. Not applicable. Exhibit 6. The consent of the trustee required by Section 321(b) of the Act. Exhibit 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.** Exhibit 8. Not applicable. Exhibit 9. Not applicable. * Incorporated by reference to exhibit number 25 filed with registration statement number 33-66026. ** Incorporated by reference to exhibit number 25 filed with registration statement number 333-62999. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Norwest Bank Minnesota, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Minneapolis and State of Minnesota on the 4th day of November, 1998. NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION /s/ Jane Y. Schweiger ---------------------------------- Jane Y. Schweiger Corporate Trust Officer EXHIBIT 6 November 4, 1998 Securities and Exchange Commission Washington, D.C. 20549 Gentlemen: In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION /s/ Jane Y. Schweiger --------------------- Jane Y. Schweiger Corporate Trust Officer -----END PRIVACY-ENHANCED MESSAGE-----