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BANKBOSTON CORPORATION
and
---------------------,
as Warrant Agent
WARRANT AGREEMENT
Dated as of ____________, 199
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TABLE OF CONTENTS*
Page
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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
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* The Table of Contents is not part of the Warrant Agreement.
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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
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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
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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
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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
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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
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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
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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.]
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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.
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(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, 000 Xxxxxxx Xxxxxx, 00-00-00, Xxxxxx, Xxxxxxxxxxxxx
00000, 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
