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BANKBOSTON CORPORATION
(a Massachusetts corporation)
Senior Debt Securities, Subordinated Debt
Securities, Preferred Stock,
Depositary Shares Representing Preferred Stock,
Common Stock and Warrants to Purchase Debt
Securities, Preferred Stock or Common Stock
UNDERWRITING AGREEMENT
Dated: ____________, 199_
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BANKBOSTON CORPORATION
(a Massachusetts corporation)
Senior Debt Securities, Subordinated Debt
Securities, Preferred Stock,
Depositary Shares representing Preferred Stock,
Common Stock and Warrants to Purchase Debt
Securities, Preferred Stock or Common Stock
UNDERWRITING AGREEMENT
___________, 199_
To the [Underwriter[s]
named in Exhibit A]
[Representative[s] named
in Exhibit A of the
Underwriters named in
Exhibit A]
Dear Sirs:
BankBoston Corporation, a Massachusetts corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its (i) senior debt securities (the "Senior Debt Securities") and/or
(ii) subordinated debt securities (the "Subordinated Debt Securities", and
together with the Senior Debt Securities, the "Debt Securities"), and/or (iii)
preferred stock (the "Preferred Shares"), and/or (iv) depositary shares which
represent fractional interests in the Preferred Shares (the "Depositary Shares")
and/or (v) common stock, par value $1.00 per share ("Common Stock"), and/or (vi)
warrants (the "Warrants") to purchase Debt Securities, Preferred Shares or
Common Stock in one or more offerings on terms determined at the time of sale
and set forth in a terms agreement in the form of Exhibit A hereto (the "Terms
Agreement"). The Subordinated Debt Securities may be convertible into or
exchangeable for Capital Securities of the Company (as defined below) and the
Preferred Shares may be convertible into Capital Securities or other preferred
stock of the Company or exchangeable for Capital Securities or Debt Securities,
in each case as set forth in the applicable Terms Agreement relating thereto. As
used herein, "Capital Securities" means any securities issued by the Company
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which consist of (i) Common Stock, (ii) perpetual preferred stock or (iii) other
capital securities of the Company acceptable to the Company's primary federal
regulator. Capital Securities may have such terms, rights and preferences as may
be determined by the Company.
The Senior Debt Securities are to be issued under an Indenture dated as of
June 15, 1992, as amended or supplemented (the "Senior Indenture"), between the
Company and Norwest Bank Minnesota, National Association ("Norwest"), as trustee
(the "Senior Trustee"). The Subordinated Debt Securities are to be issued under
an Indenture dated as of June 15, 1992, as amended or supplemented (the
"Subordinated Indenture"), between the Company and Norwest, as trustee (the
"Subordinated Trustee", and together with the Senior Trustee, the "Trustees").
The Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures". The Senior Debt Securities and the Subordinated Debt
Securities may have varying designations, maturities, rates and times of payment
of interest, if any, selling prices, redemption terms, if any, exchange terms,
if any, conversion terms and other specific terms as set forth in the applicable
Terms Agreement relating thereto.
The warrants are to be issued under warrant agreements (each a "Warrant
Agreement"), between the Company and a bank or trust company, as warrant agent
(the "Warrant Agent"). The Warrants may have varying designations, expiration
dates, selling prices, redemption terms, if any, exchange terms, if any,
conversion terms and other specific terms as set forth in the applicable Terms
Agreement relating thereto.
Each issue of Preferred Shares may vary as to the specific number of
shares, title, stated value and liquidation preference, issuance price, dividend
rate or rates (or method of calculation), dividend payment dates, redemption or
sinking fund requirements, conversion and exchange provisions and any other
variable terms as set forth in the applicable Terms Agreement relating to such
Preferred Shares. If the Preferred Shares are to be offered in the form of
Depositary Shares, the Preferred Shares will, when issued, be deposited by the
Company against delivery of depositary receipts (the "Depositary Receipts") to
be issued under a deposit agreement (the "Deposit Agreement"), to be entered
into among the Company, a depositary institution (the "Depositary") and the
holders from time to time of the Depositary Receipts issued thereunder. The
Depositary Receipts will evidence the Depositary Shares and each Depositary
Share will represent a fraction of a Preferred Share. The Preferred Shares,
together, if applicable, with the Depositary Shares are hereinafter referred to
as the "Shares".
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Each issue of Common Stock may vary as to the specific number of shares,
the initial public offering price, the purchase price and other specific terms
as set forth in the applicable Terms Agreement relating thereto.
The Debt Securities, Warrants, Shares and Common Stock, to be issued and
sold as specified in the applicable Terms Agreement, shall collectively be
referred to herein as the "Offered Securities". As used herein, unless the
context otherwise requires, the term "Underwriters" shall mean the firm or firms
specified as Underwriter or Underwriters in the applicable Terms Agreement
relating to the Offered Securities and the term "you" shall mean the Underwriter
or Underwriters, if no underwriting syndicate is purchasing the Offered
Securities, or the representative or representatives of the Underwriters, if an
underwriting syndicate is purchasing the Offered Securities, as specified in the
applicable Terms Agreement.
Whenever the Company determines to make an offering of Offered Securities,
the Company will enter into a Terms Agreement providing for the sale of the
applicable Offered Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Offered Securities shall
specify the type of Offered Securities to be issued, the names of the
Underwriters participating in such offering (subject to substitution as provided
in Section 10 hereof), the number of Offered Securities which each such
Underwriter severally agrees to purchase, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment and other
specific terms. In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase additional
Offered Securities to cover over-allotments, if any, and the amount of Offered
Securities subject to such option (the "Option Securities"). As used herein, the
term "Offered Securities" shall include the Option Securities, if any. The Terms
Agreement may take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Offered
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Company and each Underwriter participating in
the offering of such Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File
No. 333- ), including a prospectus, relating to the Offered Securities and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of
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1933, as amended (the "1933 Act"). Such registration statement has been declared
effective by the Commission. As provided in Section 3(a), a prospectus
supplement reflecting the terms of the Offered Securities, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus
supplement, in the form first filed after the date of the applicable Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the
applicable Terms Agreement, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement", and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein.
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to and agrees with each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act and as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus Supplement and any amendment thereto, (A) the
Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933
Act and the rules and regulations of the Commission thereunder (the "1933
Act Regulations"), the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"); (B) neither the Registration Statement nor
any amendment or supplement thereto contained or will contain an untrue
statement of a material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and (C) neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in
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the light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus. At the Closing Time, the Indentures will comply in all material
respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
and with the other information in the Prospectus, as of the applicable
effective date of the Registration Statement and any amendment thereto, did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company; and upon execution and delivery of each Terms Agreement by
the Company, such Terms Agreement shall have been duly authorized, executed
and delivered by the Company.
(iv) The consolidated financial statements included or incorporated
by reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of the
Company and its subsidiaries for the periods specified. Such financial
statements have bee prepared in conformity with generally accepted
accounting principles applies on a consistent basis throughout the periods
involved, except as disclosed in the notes to such financial statements.
The financial statement schedules, if any, included in the Registration
Statement present fairly the information required to be the Registration
Statement present fairly the information required to be stated therein. The
selected financial data included in the Prospectus present fairly the
information shown therein and have been complied on a basis consistent
with* that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement.
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(v) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus; the Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; BankBoston, N.A. ("FNBB")
is a duly organized and validly existing national banking association under
the laws of the United States, continues to hold a valid certificate to do
business as such and has full power and authority to conduct its business
as such (FNBB is referred to as the "Significant Subsidiary"); the
Significant Subsidiary has the authority under its jurisdiction of
organization to own, lease and operate its properties and to conduct its
business.
(vi) The Company is duly qualified as a foreign corporation, and the
Significant Subsidiary is duly authorized, to transact business and is in
good standing in each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise.
(vii) The Company does not have any subsidiaries which are material
to its business, except to the extent that the Significant Subsidiary may
be deemed to be so material.
(viii) The Offered Securities conform in all material respects to the
summary descriptions thereof contained or incorporated by reference in the
Prospectus and such summary descriptions conform to the rights set forth in
the instruments defining the same.
(ix) If the Prospectus contains a description of the capitalization
of the Company, (a) the Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus, (b) all of
the outstanding shares of Capital Securities of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, and
(c) none of the outstanding shares of Capital Securities was issued in
violation of the preemptive rights of any stockholder of the Company.
(x) If the Offered Securities include Preferred Shares, such
Preferred Shares shall, on the date of the Terms Agreement relating to such
Offered Securities, be duly authorized and, when such Preferred Shares are
duly executed and delivered and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Preferred Shares will
have been validly issued, fully paid and non-assessable; subject to the
provisions of Massachusetts General Laws, Chapter 156B, Section 45, no
holder thereof will be subject to personal liability by reason of being
such a holder; such Preferred Shares will not be subject to the.preemptive
rights of any stockholder of the Company; and all corporate action required
to be taken for the authorization, issue and sale of such Preferred Shares
has been, or at the Closing Time will be, validly and sufficiently taken;
and, if the Offered Securities include Preferred Shares that are to be
represented by Depositary Shares, then, upon deposit by the Company of such
Preferred Shares with the Depositary pursuant to the Deposit Agreement and
the execution by the Depositary of the Depositary Receipts evidencing the
Depositary Shares, such Depositary Shares shall represent legal and valid
interests in such Preferred Shares; and, if the Offered Securities include
Preferred Shares that are convertible into Capital Securities or other
preferred stock or exchangeable for Capital Securities or Debt Securities,
then such Preferred Shares shall be convertible into Capital Securities or
other preferred stock or exchangeable for Capital Securities or Debt
Securities in accordance with their terms and the terms of the Certificate
of Vote of Directors establishing a Series of a Class of Stock relating to
such Preferred Shares (the "Certificate of Vote").
(xi) If the Offered Securities include Common Stock, such Common
Stock shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Common Stock is duly executed
and delivered and issued and paid for in accordance with this Agreement and
the applicable Terms Agreement, such Common Stock will have been validly
issued, fully paid and non-assessable; subject to the provisions of
Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof
will be subject to personal liability by reason of being such a holder;
such Common Stock will not be subject to the preemptive rights of any
stockholder of the Company; and all corporate action required to be taken
for the authorization, issue and sale of such Common Stock has been, or at
the Closing Time will be, validly and sufficiently taken.
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(xii) If the Offered Securities include Debt Securities, such Debt
Securities shall, on the date of the Terms Agreement relating to such
Offered Securities, be duly authorized and, when such Debt Securities are
duly executed, authenticated and delivered in the manner provided for in
the applicable Indenture and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Debt Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and, if the Offered Securities include Subordinated
Debt Securities that are convertible into or exchangeable for Capital
Securities, then such Subordinated Debt Securities shall be convertible
into or exchangeable for Capital Securities in accordance with their terms
and the terms of the Subordinated Indenture.
(xiii) If the Offered Securities include Warrants, such Warrants
shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Warrants are duly executed,
countersigned and delivered in the manner provided for in the Warrant
Agreement and issued and paid for in accordance with this Agreement and the
applicable Terms Agreement, such Warrants will constitute valid and binding
obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and the availability of equitable remedies; and the
Warrants shall be exercisable for Debt Securities, Preferred Shares or
Common Stock in accordance with their terms and the terms of the Warrant
Agreement.
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(xiv) If the Offered Securities include Preferred Shares convertible
into Capital Securities or other preferred stock or exchangeable for
Capital Securities and/or Subordinated Debt Securities convertible into or
exchangeable for Capital Securities, the Capital Securities or preferred
stock issuable upon conversion or exchange, as the case may be, of the
Preferred Shares pursuant to their terms and the terms of the Certificate
of Vote and/or the Capital Securities issuable upon conversion or exchange
of the Subordinated Debt Securities pursuant to their terms and the terms
of the Subordinated Indenture, on the date of the Terms Agreement relating
to such Offered Securities, shall be duly authorized and validly reserved
for issuance upon such conversion or exchange by all necessary corporate
action and such Capital Securities or other preferred stock, when issued
upon such conversion or exchange, as the case may be, will be validly
issued, fully paid and non-assessable; subject to the provisions of
Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof
will be subject to personal liability by reason of being such a holder; and
the issuance of such Capital Securities or other preferred stock upon such
conversion or exchange, as the case may be, will not be subject to
preemptive rights.
(xv) If the Offered Securities include Debt Securities or Preferred
Shares exchangeable for Debt Securities, the Indentures have been duly
authorized by the Company, will be substantially in the forms filed as
exhibits to the Registration Statement and, when duly executed and
delivered by the Company and the Trustees, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and the summary descriptions of the Indentures set
forth in the Prospectus conform in all material respects to the provisions
contained in the Indentures.
(xvi) If the Offered Securities include Depositary Shares, the Deposit
Agreement has been duly authorized by the Company, will be substantially in
the form filed as an exhibit to the Registration Statement and, when duly
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executed and delivered by the Company and the Depositary, will constitute a
valid and binding obligation of the Company enforceable in accordance with
its terms, except as enforcement thereof may be limited by the
receivership, conservatorship and supervisory powers of bank regulatory
agencies generally as well as bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and the availability of equitable remedies;
and the summary description of the Deposit Agreement set forth in the
Prospectus conforms in all material respects to the provisions contained in
the Deposit Agreement.
(xvii) If the Offered Securities include Warrants, the Warrant
Agreement has been duly authorized by the Company, will be substantially in
the form filed as an exhibit to the Registration Statement and, when duly
executed and delivered by the Company and the Warrant Agent, will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
the receivership, conservatorship and supervisory powers of bank regulatory
agencies generally as well as to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and the availability of equitable remedies;
and the summary description of the Warrant Agreement conforms in all
material respects to the provisions contained in the Warrant Agreement.
(xviii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby and, except for normal recurring dividends
on the Common Stock and the Preferred Shares of the Company, there has not
been (A) any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, whether or not arising
in the ordinary course of business, (B) any transaction entered into by the
Company or any subsidiary, other than in the ordinary course of business,
that is material to the Company and its subsidiaries, considered as one
enterprise, or (C) any dividend or distribution of any
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kind declared, paid or made by the Company on its capital stock.
(xix) Neither the Company nor the Significant Subsidiary is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is a
party or by which it may be bound or to which any of its properties may be
subject, except for such defaults that would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise. The execution and delivery of this Agreement,
the applicable Terms Agreement, the Indentures, the Warrant Agreement, any
Certificate of Vote and the Deposit Agreement by the Company, the issuance
and delivery of the Offered Securities, the consummation by the Company of
the transactions contemplated in this Agreement, the applicable Terms
Agreement and in the Registration Statement, and compliance by the Company
with the terms of this Agreement, the applicable Terms Agreement, the
Indentures, the Warrant Agreement, any Certificate of Vote and the Deposit
Agreement have been duly authorized by all necessary corporate action on
the part of the Company and do not and will not result in any violation of
the charter or by-laws of the Company or the Significant Subsidiary, and do
not and will not conflict with, or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Significant Subsidiary under (A) any
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or the Significant Subsidiary is a party or
by which it may be bound or to which any of its properties may be subject
except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise or (B)
any existing applicable law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or the Significant Subsidiary or any
of its properties.
(xx) Each authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
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(other than under the 1933 Act, the 1939
Act and the securities or blue sky laws of the various states), which is
required for (A) the valid authorization, issuance, sale and delivery of
the Offered Securities or (B) the execution, delivery or performance of
this Agreement, the applicable Terms Agreement, the Indentures, the Warrant
Agreement, any Certificate of Vote or the Deposit Agreement by the Company
has been received.
(xxi) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Significant Subsidiary that is required to be disclosed in the
Prospectus or that, in the final outcome, could, in the judgment of the
Company, result in any material adverse change in the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, or that could
materially and adversely affect the properties or assets of the Company and
its subsidiaries, considered as one enterprise, or that could adversely
affect the consummation of the transactions contemplated in this Agreement;
the aggregate liability or loss, if any, resulting from the final outcome
of all pending legal or governmental proceedings to which the Company or
any Significant Subsidiary is a party or which affect any of its properties
that are not described in the Prospectus, including ordinary routine
litigation incidental to its business, would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xxii) There are no contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not described and filed
as required.
(xxiii) The Company and the Significant Subsidiaries each has good and
marketable title to all properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B) are
neither material in amount nor materially significant in relation to the
business of the Company and its subsidiaries, considered as one enterprise;
all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and
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under which the Company or the Significant Subsidiary holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor the Significant Subsidiary has any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Company or the Significant Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of such corporation
to the continued possession of the leased or subleased premises under any
such lease or sublease.
(xxiv) The Company and the Significant Subsidiaries each owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and neither
the Company nor the Significant Subsidiary has received any notice of
proceedings relating to revocation or modification of any such licenses,
permits, certificates, consents, orders, approvals or authorizations that,
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, could materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise.
(xxv) The Company and the Significant Subsidiaries each owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names necessary to carry on
their businesses as presently conducted, and neither the Company nor any of
the Significant Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names that, in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could
materially adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxvi) To the best knowledge of the Company, no labor problem exists
with its employees or with employees of the Significant Subsidiaries or is
imminent that could adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its or the
Significant Subsidiaries' principal suppliers, contractors or customers
that could be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(xxvii) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Offered Securities or the Capital Securities.
(b) Any certificate signed by any duly authorized officer of the Company
or the Significant Subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. PURCHASE AND SALE. (a) The several commitments of the
Underwriters to purchase Offered Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
may grant, if so provided in the Terms Agreement applicable to any Offered
Securities, an option to the Underwriters named in such Terms Agreement,
severally and not jointly, to purchase up to the amount of Option Securities set
forth therein at the same price per security (less, in the case of Common Stock,
an amount per share equal to any dividends declared by the Company and payable
on the Offered Securities but not payable on the Option Securities) as is
applicable to the Offered Securities. Such option, if granted, will expire 30
days after the date of the Terms Agreement applicable to the Offered Securities,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Offered Securities upon notice by you to the Company
setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by you, but shall not be later than seven full
business days and not earlier than two full business days after the exercise of
said option, nor in any event prior to the Closing Time, as hereinafter defined,
unless otherwise agreed upon by you and the Company. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally
13
and not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Offered Securities each such
Underwriter has agreed to purchase, as set forth in the applicable Terms
Agreement, bears to the total number of Offered Securities, subject to such
adjustments as you in your discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters pursuant to the applicable Terms
Agreement shall be made at the office of BankBoston, N.A., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other place as shall be agreed upon by
you and the Company in the applicable Terms Agreement, at 10:00 A.M., New York
City time, on the fifth business day (unless postponed in accordance with the
provisions of Section 10) following the date of the applicable Terms Agreement
or at such other time as shall be agreed upon by you and the Company (each such
time and date being referred to as a "Closing Time"). In addition, in the event
that any or all of the Option Securities are purchased by the Underwriters,
payment of the purchase price for, and delivery of certificates representing
such Option Securities, shall be made at the above-mentioned offices of
BankBoston, N.A., or at such other place as shall be agreed upon by you and the
Company, on each Date of Delivery as specified in the notice from you to the
Company. Payment shall be made to the Company by certified or official bank
check or checks in New York Clearing House or similar next day funds payable to
the order of the Company against delivery to you for the respective accounts of
the Underwriters of the Offered Securities to be purchased by them. Such Offered
Securities, certificates for such Offered Securities or Depositary Receipts
evidencing the Depositary Shares, as applicable, shall be in such denominations
and registered in such names as you may request in writing at least two full
business days prior to the applicable Closing Time or Date of Delivery, as the
case may be. Such Offered Securities, certificates or Depositary Receipts, as
applicable, will be made available for examination and packaging by you not
later than 10:00 A.M. on the business day prior to Closing Time or Date of
Delivery, as the case may be.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with
each Underwriter as follows:
(a) (i) If reasonably requested by you in connection with the offering of
the Offered Securities, the Company will prepare a preliminary prospectus
supplement containing such information concerning the Offered Securities as you
and the Company deem appropriate and (ii) immediately following the execution of
each Terms Agreement, the Company will prepare a Prospectus Supplement
14
that complies with the 1933 Act and the 1933 Act Regulations and that sets forth
the number or principal amount of Offered Securities covered thereby, the names
of the Underwriters participating in the offering and the number or principal
amount of Offered Securities which each Underwriter severally has agreed to
purchase, the name of each Underwriter, if any, acting as representative in
connection with the offering, the price at which the Offered Securities are to
be purchased by the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, and such other
information concerning the Offered Securities as you and the Company deem
appropriate in connection with the offering of the Offered Securities. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish
to the Underwriters named therein as many copies of any preliminary prospectus
supplement, the Prospectus and the Prospectus Supplement as you shall reasonably
request.
(b) If at any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(d), such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the Company
will, subject to Section 3(d), file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period between the date of the applicable Terms Agreement
and the Closing Time, the Company will inform you of its intention to file any
amendment to the Registration Statement, any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference in the
15
Prospectus, will furnish you with copies of any such amendment, supplement or
other document and will not file any such amendment, supplement or other
document in a form to which you or your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the Company
will notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus or any document that would as a result thereof be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement, (iv) of any request by the Commission for any amendment
to the Registration Statement or any supplement to the Prospectus or for
additional information relating thereto or to any document incorporated by
reference in the Prospectus and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Offered Securities for offering or sale
in any jurisdiction, or of the institution or threatening of any proceeding for
any of such purposes. The Company will use every reasonable effort to prevent
the issuance of any such stop order or of any order suspending such
qualification and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
(f) The Company has furnished or will furnish to you as many copies of the
Registration Statement as originally filed and of all amendments thereto,
whether filed before or after the Registration Statement becomes effective,
copies of all exhibits and documents filed therewith (including documents
incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3
under the ▇▇▇▇ ▇▇▇) and copies of all consents and certificates of experts as
you may reasonably request, and has furnished or will furnish to you, for each
other Underwriter, one copy of the Registration Statement as originally filed
and of each amendment thereto (including documents incorporated by reference
into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Offered Securities and, if applicable, Capital
Securities into or for which the Subordinated Debt Securities are convertible or
exchangeable and the Capital Securities, other preferred stock or Debt
Securities into which the Preferred Shares are convertible or exchangeable, as
the case may be, for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate
16
and to maintain such qualifications in effect for a period of not less than one
year from the effective date of the Terms Agreement applicable to such Offered
Securities; PROVIDED, HOWEVER, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Offered Securities have been qualified as above provided.
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering (i) a period of
12 months beginning after the effective date of the Registration Statement but
not later than the first day of the Company's fiscal quarter next following such
effective date and (ii) a period of 12 months beginning after the date of the
applicable Terms Agreement but not later than the first day of the Company's
fiscal quarter next following the date of the applicable Terms Agreement.
(i) If and to the extent specified in the applicable Terms Agreement, the
Company will use its best efforts to effect the listing of the Offered
Securities and, if applicable, the Capital Securities, other preferred stock or
Debt Securities issuable upon conversion of or exchange for, as the case may be,
Preferred Shares and/or Capital Securities issuable upon conversion of or
exchange for Subordinated Debt Securities, on the New York Stock Exchange and
the Boston Stock Exchange by the Closing Time with respect to the applicable
Terms Agreement.
(j) For a period of five years after the Closing Time, the Company will
furnish to you copies of all annual reports, quarterly reports and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to its stockholders
generally.
(k) Between the date of the applicable Terms Agreement and the Closing
Time or such other date as is set forth in such Terms Agreement, the Company
will not, without your prior written consent, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of, the
securities set forth in such Terms Agreement, other than as set forth in such
Terms Agreement.
17
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear all costs and
expenses incident to the performance of its obligations under this Agreement and
any applicable Terms Agreement, including (a) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, any preliminary prospectus
supplements and the Prospectus and any amendments or supplements thereto, and
the cost of furnishing copies thereof to the Underwriters, (b) the preparation,
printing and distribution of this Agreement, each Terms Agreement, the
Indentures, the Deposit Agreement, the Warrant Agreement, any Certificate of
Vote, the Offered Securities, any certificates for the Offered Securities and
Depositary Receipts, (c) the issuance and delivery of the Offered Securities to
the Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities under the
applicable securities laws in accordance with Section 3(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the Blue Sky Survey
and the Legal Investment Survey, (f) any fees charged by rating agencies for
rating any of the Offered Securities and (g) the fees and expenses incurred in
connection with the listing of the applicable Offered Securities and the Capital
Securities, other preferred stock or Debt Securities issuable upon conversion or
exchange thereof.
If a Terms Agreement is terminated by you in accordance with the provisions
of Section 5 or Section 9(i) hereof, the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for such
Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. Except as otherwise
provided in the applicable Terms Agreement, the obligations of the Underwriters
to purchase and pay for the Offered Securities pursuant to any Terms Agreement
are subject to the accuracy of the representations and warranties of the Company
contained herein at and as of the date hereof, the date of any such Terms
Agreement, and the Closing Time or contained in certificates of any officer of
the Company or the Significant Subsidiary delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder, and to
the following further conditions:
(a) At the Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or,
to your
18
knowledge or the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters.
(b) At the applicable Closing Time, you shall have received a signed
opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel for the Company, dated as of the
Closing Time, together with signed or reproduced copies of such opinion for each
of the other Underwriters, in form and substance satisfactory to you or your
counsel, to the effect that:
(i) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus.
(ii) The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(iii) FNBB is a duly organized and validly existing national banking
association under the laws of the United States, continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such; and the Significant Subsidiary has the
authority under its jurisdiction of organization to own, lease and operate
its properties and to conduct its business.
(iv) The Significant Subsidiary is duly authorized to transact
business and is in good standing in each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, considered as one enterprise.
(v) The Company is duly registered under the Bank Holding Company
Act of l956, as amended; and the Significant Subsidiary is duly authorized
to conduct such banking business in each jurisdiction in which its banking
business is
19
conducted.
(vi) If the Prospectus contains a description of the capitalization
of the Company, (a) the Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus, (b) all of
the outstanding shares of Capital Securities of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, and
(c) none of the outstanding shares of Capital Securities was issued in
violation of the preemptive rights of any stockholder of the Company.
(vii) The Offered Securities conform in all material respects as to
legal matters to the description thereof contained or incorporated by
reference in the Prospectus and such description conforms in all material
respects to the rights set forth in the instruments defining the same.
(viii) All of the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable; except for directors' qualifying shares, all
of such shares are owned by the Company, directly or through one or more
subsidiaries, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind; and none of such shares
was issued in violation of the preemptive rights of any stockholder of the
Significant Subsidiaries.
(ix) If the Offered Securities include Preferred Shares, such
Preferred Shares have been duly authorized and, when such Preferred Shares
are duly executed and delivered and issued and paid for in accordance with
this Agreement and the applicable Terms Agreement, such Preferred Shares
will have been validly issued, fully paid and non-assessable; subject to
the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no
holder thereof will be subject to personal liability by reason of being
such a holder; such Preferred Shares will not be subject to the preemptive
rights of any stockholder of the Company; and all corporate action required
to be taken for the authorization, issue and sale of such Preferred Shares
has been validly and sufficiently taken; and, if the Offered Securities
include Preferred Shares that are to be represented by Depositary Shares,
then, upon deposit by the Company of such Preferred Shares with the
Depositary pursuant to the Deposit Agreement and the execution by the
Depositary of the Depositary Receipts evidencing the Depositary Shares,
such Depositary Shares shall represent
20
legal and valid interests in such Preferred Shares; and, if the Offered
Securities include Preferred Shares that are convertible into Capital
Securities or other preferred stock or exchangeable for Capital Securities
or Debt Securities, then such Preferred Shares are convertible into Capital
Securities or other preferred stock or exchangeable for Capital Securities
or Debt Securities in accordance with their terms and the terms of the
Certificate of Vote.
(x) If the Offered Securities include Common Stock, such Common Stock
shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Common Stock is duly executed
and delivered and issued and paid for in accordance with this Agreement and
the applicable Terms Agreement, such Common Stock will have been validly
issued, fully paid and non-assessable; subject to the provisions of
Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof
will be subject to personal liability by reason of being such a holder;
such Common Stock will not be subject to the preemptive rights of any
stockholder of the Company; and all corporate action required to be taken
for the authorization, issue and sale of such Common Stock has been, or at
the Closing Time will be, validly and sufficiently taken.
(xi) If the Offered Securities include Debt Securities, such Debt
Securities have been duly authorized and, when such Debt Securities are
duly executed, authenticated and delivered in the manner provided for in
the applicable Indenture and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Debt Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and, if the Offered Securities include Subordinated
Debt Securities that are convertible into of exchangeable for Capital
Securities, then such Subordinated Debt Securities are convertible into or
exchangeable for Capital Securities in accordance with their terms and the
terms of the Subordinated Indenture.
21
(xii) If the Offered Securities include Warrants, such Warrants have
been duly authorized and, when such Warrants are duly executed,
authenticated and delivered in the manner provided for in the Warrant
Agreement and issued and paid for in accordance with this Agreement and the
applicable Terms Agreement, such Warrants will constitute valid and binding
obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and the availability of equitable remedies; and the
Warrants are exercisable for Debt Securities, Preferred Shares or Common
Stock in accordance with their terms and the terms of the Warrant
Agreement.
(xiii) If the Offered Securities include Preferred Shares convertible
into Capital Securities or other preferred stock or exchangeable for
Capital Securities and/or Subordinated Debt Securities convertible into or
exchangeable for Capital Securities, the Capital Securities or other
preferred stock issuable upon conversion or exchange, as the case may be,
of the Preferred Shares pursuant to their terms and the terms of the
Certificate of Vote and/or the Capital Securities issuable upon conversion
of or exchange for the Subordinated Debt Securities pursuant to their terms
and the terms of the Subordinated Indenture, have been duly authorized and
validly reserved for issuance upon such conversion by all necessary
corporate action and such Capital Securities or other preferred stock, when
issued upon such conversion, will be validly issued, fully paid and non-
assessable; subject to provisions of Massachusetts General Laws, Chapter
156B, Section 45, no holder thereof will be subject to personal liability
by reason of being such a holder; and the issuance of such Capital
Securities or other preferred stock upon such conversion or exchange, as
the case may be, will not be subject to preemptive rights.
(xiv) If the Offered Securities include Debt Securities or Preferred
Shares exchangeable for Debt Securities, the applicable Indenture has been
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the applicable Trustee,
22
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by the receivership, conservatorship and supervisory
powers of bank regulatory agencies generally as well as bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the
availability of equitable remedies; and the Indenture has been duly
qualified under the 1939 Act.
(xv) If the Offered Securities include Depositary Shares, the
Deposit Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery thereof by
the Depositary, constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof may
be limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law) and the availability of equitable remedies.
(xvi) If the Offered Securities include Warrants, the Warrant
Agreement has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery thereof by the
Warrant Agent, constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof may
be limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies.
(xvii) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
(xviii) Each authorization, approval, consent or license of any
government, governmental instrumentality or court,
23
domestic or foreign (other than under the 1933 Act, the 1939 Act and the
securities or blue sky laws of the various states), which is required for
(A) the valid authorization, issuance, sale and delivery of the Offered
Securities or (B) the execution, delivery or performance of this Agreement,
the applicable Terms Agreement, the applicable Indenture, the Warrant
Agreement, any Certificate of Vote or the Deposit Agreement, as applicable,
by the Company has been received.
(xix) Such counsel does not know of any statutes or regulations, or
any pending or threatened legal or governmental proceedings, required to be
described in the Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described or referred
to in the Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as required.
(xx) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described are accurate and fairly discuss in all material
respects the information required to be shown.
(xxi) Except with respect to undertakings or agreements with bank
regulatory authorities, the disclosure with respect to which is addressed
in clause (xxv) below, to the knowledge of such counsel, no default exists
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, loan agreement,
note, lease or other agreement or instrument that is described or referred
to in the Prospectus or filed as an exhibit to the Registration Statement.
(xxii) The execution and delivery of this Agreement, the applicable
Terms Agreement, the applicable Indenture, the Warrant Agreement, any
Certificate of Vote and the Deposit Agreement, as applicable, by the
Company, the issuance and delivery of the Offered Securities and the
consummation by the Company of the transactions contemplated in this
Agreement, the applicable Terms Agreement and in the Registration Statement
and compliance by the Company with the terms of this Agreement, the
applicable Terms Agreement, the applicable Indenture, the Warrant
Agreement, any Certificate of Vote and the Deposit Agreement, as
applicable, do not and will not result in any violation of the charter or
by-laws of the Company or the Significant Subsidiary, and do not and will
not conflict with, or result
24
in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Significant
Subsidiary under (A) any indenture, mortgage or loan agreement, or any
other agreement or instrument known to such counsel, to which the Company
or the Significant Subsidiary is a party or by which it may be bound or to
which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise), (B) any existing applicable
law, rule or regulation (other than the securities or blue sky laws of the
various states, as to which such counsel need express no opinion), or (C)
any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or the Significant Subsidiary or any of its properties.
(xxiii) The Registration Statement is effective under the 1933 Act,
and to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated under the 1933 Act.
(xxiv) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement thereto (except for the financial statements and other financial
or statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), as of their respective effective or issue
dates and as of the date of the applicable Terms Agreement, appear on their
face to have been appropriately responsive in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations.
(xxv) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need
express no opinion, and except to the extent that any statement therein is
modified or superseded in the Prospectus), as of the dates they were filed
with the Commission and as of the date of the applicable Terms Agreement,
appear on their face to have been appropriately responsive in all material
respects to
25
the requirements of the 1934 Act and the 1934 Act Regulations.
(xxvi) Such counsel has participated in the preparation of the
Registration Statement and the Prospectus and is familiar with or has
participated in the preparation of the documents incorporated by reference
therein and no facts have come to the attention of such counsel to lead him
to believe (A) that the Registration Statement or any amendment thereto
(except for the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need
express no opinion), on the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, on the date of the filing of any annual report
on Form 10-K after the filing of the Registration Statement, on the date of
this Agreement, on the date of the applicable Terms Agreement, on the date
any such amendment became effective after the date of this Agreement or the
date of the applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (B)
that the Prospectus or any amendment or supplement thereto (except for the
financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need express no
opinion), at the time the Prospectus Supplement was issued, at the time any
such amended or supplemented Prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (C) that the documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion, and except to the extent that any
statement therein is modified or superseded in the Prospectus), as of the
dates they were filed with the Commission, contained an untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
Such opinion shall be to such further effect with respect to other legal
matters relating to this Agreement, the Terms Agreement and the sale of the
Offered Securities pursuant to this Agreement as counsel for the Underwriters
may reasonably request. Such opinion shall be limited to Massachusetts and
federal law.
26
In giving such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the Commonwealth of Massachusetts
and the federal law of the United States, upon opinions of other counsel, who
shall be counsel satisfactory to counsel for the Underwriters, in which case the
opinion shall state that such counsel is entitled to so rely. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Significant Subsidiaries and certificates of public officials.
(c) At the applicable Closing Time, you shall have received the favorable
opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, dated as of the
Closing Time, together with signed or reproduced copies of such opinion for each
of the other Underwriters, to the effect that the opinion delivered pursuant to
Section 5(b) appears on its face to be appropriately responsive to the
requirements of this Agreement and the applicable Terms Agreement except,
specifying the same, to the extent waived by you, and with respect to the
incorporation and legal existence of the Company, the Offered Securities, this
Agreement, the Registration Statement, the Prospectus and such other related
matters as you may require. In giving such opinion, such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon the opinions of
counsel satisfactory to you. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and the Significant
Subsidiaries and certificates of public officials.
(d) At the applicable Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition (financial or otherwise) or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and you
shall have received a certificate of the Chairman and Chief Executive Officer,
the President and Chief Operating Officer, a Vice President or a Vice Chairman,
and the Vice Chairman, Chief Financial Officer and Treasurer, the Executive
Director, Global Treasury & Investments or the Comptroller of the Company, dated
as of such Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company contained
in Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of such Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
27
complied with or satisfied at or prior to such Closing Time, and (iv) to the
best knowledge of such person, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(e) PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters (in each case in form and.substance satisfactory to you), together with
signed or reproduced copies of such letter or letters for each of the other
Underwriters, if any, making the statements contained in paragraphs (1) and (2)
as follows:
(1) At the date of the applicable Terms Agreement, a letter relating
to the Company (the "Terms Agreement Letter"), to the effect that:
(a) They are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(b) In their opinion, the audited financial statements and the
related financial statement schedules included or incorporated by reference in
the Company's most recently filed annual report on Form 10-K comply as to form
in all material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations with respect to Registration Statements on Form
S-3 and the 1934 Act and the 1934 Act Regulations with respect to annual reports
on Form 10-K.
(c) On the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a reading
of the minutes of all meetings of the stockholders and directors of the Company
and of FNBB and the minutes of meetings of the Executive, Audit, Compensation,
and Board Governance Committees of the Board of Directors of the Company from
the date of the latest audited consolidated financial statements of the Company,
a reading of the unaudited consolidated financial statements of the Company and
its subsidiaries included or incorporated by reference in each of the Company's
quarterly reports on Form 10-Q filed prior to the date of the applicable Terms
Agreement and subsequent to the Form 10-K described in (b) above, a reading of
the most recent consolidated financial statement of the Company, and inquiries
of certain officials of the Company and its subsidiaries responsible for
financial and
28
accounting matters, all such inquiries and procedures being carried out to a
specified date not more than five business days prior to the date of the Terms
Agreement Letter, nothing came to their attention that caused them to believe
that:
(i) the unaudited consolidated financial statements included or
incorporated by reference in each quarterly report on Form 10-Q do not
comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations with respect to
Form 10-Q; or
(ii) such unaudited consolidated financial statements are not in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of audited consolidated financial
statements referred to above, except as disclosed in the notes to such
unaudited consolidated financial statements or as otherwise described in
such Terms Agreement Letter; or
(iii) there was any increase at the specified date in the consolidated
notes payable of the Company and its consolidated subsidiaries or any
increase in the number of shares of Capital Securities outstanding of the
Company, or any decrease in the stockholder's equity of the Company, in
each case as compared with the most recent balance sheet included or
incorporated by reference in the Registration Statement, except in each
case for changes, decreases or increases that the Registration Statement
discloses have occurred or may occur, or which are disclosed in the Terms
Agreement Letter;
(iv) for the period from the date of the latest consolidated balance
sheet of the Company and its subsidiaries included or incorporated by
reference in the Prospectus to such specified date, there was any decrease
in the net interest revenue or net income, in each case as compared with
the comparable period in the preceding year, except in each case for any
decreases that the Registration Statement discloses have occurred or may
occur, or which are disclosed in the Terms Agreement Letter.
29
(d) Such letter shall further state that, in addition to their
examinations, inspections, inquiries and other procedures referred to
therein, they have performed such other procedures, specified by you, not
constituting an audit, as they have agreed to perform and report on with
respect to certain amounts, percentages, numerical data and other financial
information in the most recently filed Form 10-K, each Form 10-Q
incorporated by reference in the Registration Statement, the Registration
Statement, the Prospectus and the exhibits to the Registration Statement or
in other documents incorporated by reference in the Prospectus, and have
compared certain of such amounts, percentages, numerical data and financial
information with, and have found such items to be in agreement with or
derived from, the detailed accounting and financial records of the Company
and its subsidiaries.
(2) At the Closing Time, a letter dated the Closing Time (the "Closing
Letter"), to the effect that they reaffirm as of the date of the Closing Letter
(and as though made on the date of the Closing Letter) all statements made in
the Terms Agreement Letter, except that the inquiries and procedures specified
therein shall have been carried out to a specified date not more than five days
prior to the date of the Closing Letter.
(e) Between the date of the applicable Terms Agreement and the
Closing Time, (i) no downgrading shall have occurred in the rating accorded
the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act and (ii) no
such organization shall have given any notice of any intended or potential
downgrading or of any surveillance or review, with possible negative
implications, of its rating of any of the Company's debt securities or
preferred stock.
(f) On or prior to the Closing Time, the Offered Securities shall
have been duly authorized for listing on such exchange, if any, as is
specified in the applicable Terms Agreement.
(g) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
require for the purpose of enabling them to pass upon the issuance and sale
of the Offered Securities as herein contemplated and related
30
proceedings, or in order to evidence the accuracy and completeness of any
of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment of
any of the conditions herein contained; and all proceedings taken by the
Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Offered Securities as herein
contemplated shall be satisfactory in form and substance to you and counsel
for the Underwriters.
(h) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished
by the Company hereunder shall be true and correct as of each Date of
Delivery, and you shall have received:
(1) A certificate, dated such Date of Delivery, of the Chairman
and Chief Executive Officer, the President and Chief Operating
Officer, a Vice President or a Vice Chairman, and the Vice Chairman,
Chief Financial Officer and Treasurer, the Executive Director, Global
Treasury & Investments or the Comptroller of the Company, in their
capacities as such, confirming that the certificate delivered at
Closing Time pursuant to Section 5(d) hereof remains true and correct
as of such Date of Delivery.
(2) The favorable opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinion required by Section 5(b) hereof.
(3) The favorable opinion of ▇▇▇▇▇ & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(4) A letter from PricewaterhouseCoopers LLP in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the Closing Letter
furnished to you pursuant to Section 5(e)(2) hereof, except that the
"specified date" in the letter shall be a date not more than five days
prior to such Date of Delivery.
31
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof. Notwithstanding
any such termination, the provisions of Sections 6, 7 and 8 shall remain in
effect.
Section 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), and all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of an untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, or
any preliminary prospectus supplement, or the Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii)
above;
32
PROVIDED, HOWEVER, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus, or any preliminary prospectus
supplement, or the Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus, or any preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus, or any
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company and
one or more of the Underwriters, as incurred, in such proportions that (a) the
33
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount appearing on the cover page of the Prospectus bears to
the initial public offering price appearing thereon and (b) the Company is
responsible for the balance; PROVIDED, HOWEVER, that (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Offered Securities purchased by such
Underwriter hereunder and under the applicable Terms Agreement and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other statements of
the Company or its officers set forth in or made pursuant to this Agreement and
any Terms Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company or any
Underwriter or controlling person and shall survive delivery of and payment for
the Offered Securities.
Section 9. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated for any reason at any time by either
the Company or you upon the giving of thirty days' written notice of such
termination to the other party hereto. You may also terminate a Terms Agreement,
immediately upon notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there shall have been, since the date of such
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business or (ii) if there shall have occurred
any outbreak or escalation of existing hostilities or other national or
international calamity or crisis the effect of which on the financial markets of
the United States is such as to make it, in your reasonable judgment,
impracticable to market the Offered Securities or to enforce contracts for the
sale of the Offered Securities or (iii) if trading in any securities of the
Company has been suspended by the Commission or the National
34
Association of Securities Dealers, Inc., or if trading generally on the New York
Stock Exchange, the Boston Stock Exchange or in the over-the-counter market has
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities have been required, by such
exchanges or by order of the Commission, any exchange on which such securities
are listed or any other governmental authority with appropriate jurisdiction
over such matters or (iv) if a banking moratorium has been declared by either
federal or New York authorities.
(b) If this Agreement or any Terms Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party, except to the extent provided in Section 4. Notwithstanding any
such termination (i) the covenants set forth in Section 3(b), (c) and (e) with
respect to any offering of Offered Securities shall remain in effect so long as
any Underwriter owns any such Offered Securities purchased from the Company
pursuant to the applicable Terms Agreement and during the period when the
Prospectus is required to be delivered in connection with sales of the Offered
Securities and (ii) the covenants set forth in Section 3(g), (h), (j) and, if
applicable, (k), the provisions of Section 4, the indemnity agreement set forth
in Section 6, the contribution provisions set forth in Section 7 and the
provisions of Sections 8 and 13 shall remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters participating in an offering of Offered Securities shall fail
at the applicable Closing Time to purchase the Offered Securities which it or
they are obligated to purchase hereunder and under the applicable Terms
Agreement (the "Defaulted Securities"), you shall have the right, within 36
hours thereafter, to make arrangements for one or more of the nondefaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, you have not completed such arrangements
within such 36-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Offered Securities to be purchased pursuant to such Terms
Agreement, the nondefaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations bear to the underwriting
obligations of all nondefaulting Underwriters, or
35
(b) if the number of Defaulted Securities exceeds 10% of the Offered
Securities to be purchased pursuant to such Terms Agreement, the applicable
Terms Agreement shall terminate without liability on the part of any
nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default that does not result in the termination of
the applicable Terms Agreement, either you or the Company shall have the right
to postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. NOTICES. All notices and other communications under this
Agreement and any Terms Agreement shall be in writing and shall be deemed to
have been duly given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to _______, or
in respect of any Terms Agreement, to such other person and place as may be
specified therein; notices to the Company shall be directed to it at BankBoston
Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel.
Section 12. PARTIES. This Agreement herein set forth and any Terms
Agreement is made solely for the benefit of any Underwriter which becomes a
party to a Terms Agreement, the Company and, to the extent expressed, any person
controlling the Company or any such Underwriter, and the directors of the
Company, its officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and, subject to the
provisions of Section 10, no other person shall acquire or have any right under
or by virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from any Underwriter of the Offered
Securities. All of the obligations of any Underwriters hereunder and under any
Terms Agreement are several and not joint.
Section 13. GOVERNING LAW AND TIME. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
36
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
37
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and each Underwriter in
accordance with its terms.
Very truly yours,
BANKBOSTON CORPORATION
By __________________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
38
Exhibit A
BANKBOSTON CORPORATION
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: BankBoston Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Underwriting Agreement dated , 199_
Dear Sirs:
We (the "Representative[s]") understand that BankBoston Corporation, a
Massachusetts corporation (the "Company"), proposes to issue and sell [[$
aggregate principal amount] of its [senior debt securities] [and] [subordinated
[convertible or exchangeable] debt securities] (the "Debt Securities")] [and]
[_______ shares of its [convertible] [exchangeable] preferred stock (the
"Preferred Shares")] [_____ depositary shares (the "Depositary Shares") each
representing ____ of a share of ____ preferred stock] [and] [____ shares of its
common stock, par value $1.00 per share ("Common Stock")]. This Agreement is the
39
Terms Agreement referred to in the underwriting agreement dated ____________,
199_ (the "Underwriting Agreement"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Underwriters named below
(the "Underwriters") offer to purchase, severally and not jointly, the
respective [amounts of [Debt Securities] [and] [Preferred Shares] [Depositary
Shares]] [numbers of shares of Common Stock] set forth below.
Principal Principal Principal Number
Amount of Amount of Amount of of Shares
Name of Debt Preferred Depositary of Common
Underwriter Securities Shares Shares Stock
----------- --------- ---------- --------- ---------- ---------
--------- ---------- --------- ---------- ---------
Total $ $ $
--------- ---------- --------- ---------- ---------
40
DEBT SECURITIES
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount, plus accrued
interest, if any, [or amortized original issue discount, if any,]
from , 19 .
Purchase price: % of the principal amount, plus accrued interest, if any,
41
[or amortized original issue discount, if any,] from ,
19 (payable in next day funds).
Listing requirement: [None] [NYSE] [BSE]
Convertible:
Conversion provisions:
Exchangeable:
Exchange provisions:
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Number of Option Securities, if any:
Other terms and conditions:
42
PREFERRED SHARES
Title of Preferred Shares:
Principal amount to be issued: $
Currency:
Annual cash dividend rate: % Payable:
Liquidation preference per Share:
Initial public offering price: %, plus accrued interest or amortized
original issue discount, if any, from __________, 19__.
Purchase Price: %, plus accrued interest or amortized original issue
discount, if any, from _____________, 19__ (payable in next day funds).
Listing Requirement: [None] [NYSE] [BSE]
Convertible:
Initial Conversion price: $____ per share of [Common Stock] [Preferred
Stock] [Capital Securities].
Other conversion provisions:
43
Exchangeable:
Exchange Provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
DEPOSITARY SHARES
Title of Depositary Shares:
44
Principal amount to be issued: $
Currency:
Fractional amount of Preferred Shares represented by each Depositary Share:
Initial public offering price per Depositary Share: % of the principal
amount, plus accrued interest [or amortized original issue discount], if
any, from ____________, 19__.
Purchase price per Depository Share:
(amount equal to the initial public offering price set forth above, less
$________ per Depositary Share).
Annual cash dividend amount: $ Payable:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
45
Number of Option Securities, if any:
Other terms and conditions:
COMMON STOCK
Initial public offering price per share:
Purchase Price per share:
Listing Requirement: [NYSE] [BSE]
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Number of Option Securities, if any:
Purchase Price per Option Security:
Other terms and conditions:
46
WARRANTS
Title of Warrants:
Number to be issued:
Currency:
Initial public offering price per Warrant: $
Purchase price per Warrant: $
Listing requirement: [None] [NYSE] [BSE]
Exercisable for:
Exercise price:
Exercise provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
47
Lock-up provisions:
Other terms and conditions:
Each Underwriter severally agrees, subject to the terms and provisions of
the above referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the [principal amount] [number of
shares] of Offered Securities set forth opposite its name and a proportionate
share of Option Securities to the extent any are purchased.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State.
If the foregoing is in accordance with your understanding of the agreement
among the Underwriters and the Company, please sign and return to the
undersigned a counterpart hereof, whereupon this instrument, along with all
counterparts and together with the Underwriting Agreement, shall be a binding
agreement among the Underwriters named herein and the Company in accordance with
its terms and the terms of the Underwriting Agreement.
48
Very truly yours,
[Representatives[s]]
By:_________________________________
Acting on behalf of themselves and
the other named Underwriters
Confirmed and accepted as of
the date first above written:
BANKBOSTON CORPORATION
By: ____________________________
Name:
Title:
49