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BANKBOSTON CORPORATION,
________________________, as Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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DEPOSIT AGREEMENT
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Dated as of ____________ , ___199_
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TABLE OF CONTENTS
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ARTICLE I
Definitions..................................................................................................... 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
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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
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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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ARTICLE IV
The Deposited Securities; Notices
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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
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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
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SECTION 6.01. Amendment........................................................................................ 23
SECTION 6.02. Termination...................................................................................... 23
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ARTICLE VII
Miscellaneous
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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
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Form of Face of Receipt......................................................................................... A-1
Form of Reverse of Receipt...................................................................................... A-2
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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
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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
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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
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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
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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.
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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
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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
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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
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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
000 Xxxxxxx Xxxxxx, Mail Stop 01-25-01
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Clerk
Facsimile No.: (000) 000-0000
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
