BANK OF BOSTON CORPORATION
Boston, Massachusetts
Restated
Articles of Organization, as amended
BANK OF BOSTON CORPORATION
Restated
Articles of Organization
Table of Contents
Page
ARTICLE 1
Name 1
ARTICLE 2
Purpose 1
ARTICLE 3
Authorized Capital Stock 1
ARTICLE 4
Common Stock 1
Preferred Stock, General 1
Preferred Stock, Series A 2
Preferred Stock, Series B 18
Preferred Stock, Series C 34
Preferred Stock, Series D 49
Preferred Stock, Series E 60
Preferred Stock, Series F 70
ARTICLE 5
Transfer Restrictions, if any 80
ARTICLE 6
Amendment of By-Laws 80
Stockholders Meetings 80
Corporation as Partner 80
Limitation on Director Liability 80
BANK OF BOSTON CORPORATION
ARTICLES OF ORGANIZATION
Restated
November 24, 1993
ARTICLE 1
The name by which the corporation shall be known is "Bank of Boston
Corporation."
ARTICLE 2
The purposes for which the corporation is formed are as follows:
To buy, sell, deal in, or hold securities of every kind and description;
and in general to carry on any business permitted to corporations organized
under Chapter 156B of the Massachusetts General Laws as now in force or
hereafter amended.
ARTICLE 3
The total number of shares and the par value, if any, of each class of stock
which the corporation is authorized to issue is as follows:
Preferred Stock, no par value: 10,000,000
Common Stock par value $2.25 per share: 200,000,000
ARTICLE 4
(A) There shall be a class of common stock having a par value of $2.25 per
share consisting of 200,000,000 shares. The holders of record of such common
stock shall have one vote for each share of such common stock held by them,
respectively.
(B) There shall be a class of Preferred Stock consisting of 10,000,000 shares
without par value. The shares of the Preferred Stock are to be issuable at any
time or from time to time in one or more series as and when established by the
Board of Directors, each such series to have such
designation or title as may be fixed by the Directors prior to the issuance of
any shares thereof, and each such series may differ from every other series
already outstanding as may be determined by the Directors prior to the issuance
of any shares thereof, in any or all of the following, but in no other respects:
(a) the rate of dividend (cumulative or non-cumulative) to which holders of the
Preferred Stock of any such series shall be entitled;
(b) the terms and manner of the redemption by the corporation of the Preferred
Stock of any such series;
(c) the special or relative rights of the holders of the Preferred Stock of any
such series in the event of the voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-up of the
corporation;
(d) the terms of the sinking fund or redemption or purchase account, if any, to
be provided for the Preferred Stock of any such series;
(e) the right, if any, of the holders of Preferred Stock of any such series to
convert the same into stock of any other class or classes or into other
securities of the corporation, and the terms and conditions of such
conversion; and
(f) the voting rights, if any, of the holders of Preferred Stock of any such
series.
(C) Preferred Stock, Series A
1. DEFINITIONS OF CERTAIN EXPRESSIONS USED IN THIS PARAGRAPH. As used in this
Article 4, the following capitalized words and expressions have the respective
meanings set out below:
"Applicable Rate" Except as provided below in this definition, the
Applicable Rate for any quarterly dividend period commencing on or after
June 16, 1984 shall be (x) 1.95% less than (y) the highest of the Treasury
Bill Rate, the Ten Year Constant Maturity Rate
2
and the Twenty Year Constant Maturity Rate (each as hereinafter defined)
for such dividend period. If the corporation determines in good faith that:
(i) any one of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Twenty Year Constant Maturity Rate cannot be determined
for any particular quarterly dividend period, then the Applicable Rate
for such dividend period shall be 1.95% less than the higher of
whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate can be
determined for any particular quarterly dividend period, then the
Applicable Rate for such dividend period shall be 1.95% less than the
rate that can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Twenty Year Constant Maturity Rate can be determined for
any particular quarterly dividend period, then the Applicable Rate in
effect for the preceding quarterly dividend period shall be continued
for such dividend period.
However, the Applicable Rate for any quarterly dividend period shall in no
event be less than six percent (6%) per annum nor greater than thirteen
percent (13%) per annum.
"Articles of Organization" mean the Articles of Organization of the
corporation as amended and in effect from time to time, including the
amendment thereof effected pursuant to this paragraph.
"Board of Governors" means the Board of Governors of the Federal Reserve
System or any governmental entity which may be granted the powers referred
to herein currently exercised by the Board of Governors.
"Calendar Period" means a period of fourteen calendar days.
3
"Common Stock" means the capital stock of the corporation so designated and
authorized from time to time and being stock which is junior to all series
of the Preferred Stock in respect of dividend payments and of distributions
or payments upon Liquidation.
"corporation" means Bank of Boston Corporation and includes any successor
corporation by merger, consolidation or otherwise if the stockholders of
the former continue as stockholders of the continuing or combined
corporation.
"Junior Dividend Stock" means (i) the Common Stock and (ii) any series of
the Preferred Stock which is specifically made junior to the Series A
Stock, and any class of capital stock of the corporation which is
specifically made junior to the Preferred Stock, in respect of payments of
dividends.
"Junior Liquidation Stock" means (i) the Common Stock and (ii) any series
of the Preferred Stock which is specifically made junior to the Series A
Stock and any class of capital stock of the corporation which is
specifically made junior to the Preferred Stock, in respect of
distributions or payments upon Liquidation.
"Junior Stock" means the Common Stock, the Junior Dividend Stock and the
Junior Liquidation Stock.
"Liquidation" means the voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding up of the corporation, but shall
not include (i) merger or consolidation of the corporation with another
corporation pursuant to any statute which provides in effect that the
stockholders of the former shall continue as stockholders of the continuing
or combined corporation and (ii) the acquisition by the corporation of
assets or stock of another corporation.
"Preferred Stock" means the authorized class of the capital stock of the
corporation so designated of which there are currently 10,000,000 shares
authorized.
"Series A Stock" means the series of Preferred Stock created by this
paragraph.
4
"Special Securities" means securities which can, at the option of the
holder, be surrendered at face value in payment of federal estate taxes or
which provide tax benefits for the holder and are priced to reflect such
tax benefits or which were issued at a deep or substantial discount.
"Ten Year Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of ten years).
"Ten Year Constant Maturity Rate" Except as provided below in this
definition, the Ten Year Constant Maturity Rate for each quarterly dividend
period shall be the arithmetic average (rounded, if not a whole multiple of
five hundredths of a percentage point, to the nearest whole such fraction
of a percentage point) of the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield, if only
one such yield shall be published during the relevant Calendar Period) as
published weekly by the Board of Governors during the Calendar Period
immediately prior to the 10 calendar days preceding the 15th day of March,
June, September or December, as the case may be, occurring prior to the
commencement of the dividend period for which the dividend rate on the
shares of the Series A Stock is being determined. If the Board of Governors
does not publish such a weekly per annum Ten Year Average Yield during any
such Calendar Period, then the Ten Year Constant Maturity Rate for such
dividend period shall be the arithmetic average of the two most recent
weekly per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such yield shall be published during the
relevant Calendar Period), as published weekly during such Calendar Period
by any Federal Reserve Bank or by any U.S. Government department or agency
selected by the corporation. If a per annum Ten Year Average Yield shall
not be published by the Board of Governors or by any Federal Reserve Bank
or by any U.S. Government department or agency during such Calendar Period,
then the Ten Year Constant Maturity Rate for such dividend period shall be
the arithmetic average of the two most recent weekly per
5
annum average yields to maturity (or the one weekly per annum average yield
to maturity, if only one such yield shall be published during the relevant
Calendar Period) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) then having
maturities of not less than eight nor more than 12 years, as published for
such Calendar Period by the Board of Governors or, if the Board of
Governors shall not publish such yields, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the corporation. If
the corporation determines in good faith that for any reason the
corporation cannot determine the Ten Year Constant Maturity Rate for any
dividend period as provided above in this paragraph, then the Ten Year
Constant Maturity Rate for such dividend period shall be the arithmetic
average of the per annum average yields to maturity based upon the closing
bids during such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than eight nor more than 12
years from the date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the corporation by at least three
recognized dealers in U.S. Government securities selected by the
corporation.
"Treasury Bill Rate" Except as provided below in this definition, the
Treasury Bill Rate for any quarterly dividend period shall be the
arithmetic average (rounded, if not a whole multiple of five hundredths of
a percentage point, to the nearest whole such fraction of a percentage
point) of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such rate shall
be published during the relevant Calendar Period) for three-month U.S.
Treasury bills, as published weekly by the Board of Governors during the
Calendar Period immediately prior to the 10 calendar days preceding the
15th day of March, June, September or December, as the case may be,
occurring prior to the commencement of the dividend period for which the
dividend rate on the shares of the Series A Stock is being determined. If
the Board of Governors does not publish such a weekly per annum market
6
discount rate during any such Calendar Period, then the Treasury Bill Rate
for such dividend period shall be the arithmetic average of the two most
recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published during the
relevant Calendar Period) for three-month U.S. Treasury bills, as published
weekly during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the corporation. If a per
annum market discount rate for three-month U.S. Treasury bills shall not be
published by the Board of Governors or by any Federal Reserve Bank or by
any U.S. Government department or agency during such Calendar Period, then
the Treasury Bill Rate for such dividend period shall be the arithmetic
average of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such rate shall
be published during the relevant Calendar Period) of all of the U.S.
Treasury bills then having maturities of not less than 80 nor more than 100
days, as published during such Calendar Period by the Board of Governors
or, if the Board of Governors shall not publish such rates, by any Federal
Reserve Bank or by any such U.S. Government department or agency selected
by the corporation. If the corporation determines in good faith that for
any reason no such U.S. Treasury bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such dividend
period shall be the arithmetic average of the per annum market discount
rates based upon the closing bids during such Calendar Period for each of
the issues of marketable non-interest bearing U.S. Treasury securities with
a maturity of not less than 80 nor more than 100 days from the date of each
such quotation, as chosen and quoted daily for each business day in New
York City (or less frequently if daily quotations shall not be generally
available) to the corporation by at least three recognized dealers in U.S.
Government securities selected by the corporation. If the corporation
determines in good faith that for any reason the corporation cannot
determine the Treasury Bill Rate for any dividend period as provided above
in this paragraph, the Treasury Bill Rate for such dividend period shall be
the arithmetic average of the per annum market discount rates based upon
the closing bids during such Calendar Period for each of
7
the issues of marketable interest-bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days from the date of each
such quotation, as chosen and quoted daily for each business day in New
York City (or less frequently if daily quotations shall not be generally
available) to the corporation by a least three recognized dealers in U.S.
Government securities selected by the corporation.
"Twenty Year Average Yield" means the average yield to maturity for
actively traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of 20 years).
"Twenty Year Constant Maturity Rate" Except as provided below in this
definition, the Twenty Year Constant Maturity Yield for any quarterly
dividend period shall be the arithmetic average (rounded, if not a whole
multiple of five hundredths of a percentage point, to the nearest whole
such fraction of a percentage point) of the two most recent weekly per
annum Twenty Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such yield shall be published during the
relevant Calendar Period), as published weekly by the Board of Governors
during the Calendar Period immediately prior to the 10 calendar days
preceding the 15th day of March, June, September or December, as the case
may be occurring prior to the commencement of the dividend period for which
the dividend rate on the shares of the Series A Stock is being determined.
If the Board of Governors does not publish such a weekly per annum Twenty
Year Average Yield during any such Calendar Period, then the Twenty Year
Constant Maturity Rate for such dividend period shall be the arithmetic
average of the two most recent weekly per annum Twenty Year Average Yields
(or the one weekly per annum Twenty Year Average Yield, if only one such
yield shall be published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the corporation. If a per
annum Twenty Year Average Yield shall not be published by the Board of
Governors or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Twenty Year
Constant Maturity Rate for such dividend
8
period shall be the arithmetic average of the two most recent weekly per
annum average yields to maturity (or the one weekly per annum average yield
to maturity, if only one such yield shall be published during the relevant
Calendar Period) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) then having
maturities of not less than 18 nor more than 22 years, as published during
such Calendar Period by the Board of Governors or, if the Board of
Governors shall not publish such yields, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the corporation. If
the corporation determines in good faith that for any reason the
corporation cannot determine the Twenty Year Constant Maturity Rate for any
dividend period as provided above in this paragraph, then the Twenty Year
Constant Maturity Rate for such dividend period shall be the arithmetic
average of the per annum average yields to maturity based upon the closing
bids during such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than 18 nor more than 22
years from the date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the corporation by at least three
recognized dealers of national reputation in U.S. Government securities
selected by the corporation.
2. NUMBER OF SHARES AND DESIGNATION. 1,045,712 shares of Preferred Stock are
hereby constituted as a series of Preferred Stock, liquidation preference $50
per share, and designated as Adjustable Rate Cumulative Preferred Stock, Series
A. No additional shares of Preferred Stock may be issued as Series A Stock.
3. PREFERENCES. The preferences of each share of the Series A Stock with
respect to dividend payments or to distributions or payments upon Liquidation
will be in every respect on a parity with the preferences of every other share
of Preferred Stock and of every other class of the capital stock of the
corporation (other than Common Stock) from time to time outstanding, which other
shares of the Preferred Stock and which other classes of capital stock are
9
not made senior or junior to the Series A Stock as to dividend payments or to
distributions or payments upon Liquidation.
4. LIQUIDATION. Upon Liquidation, the holders of the then outstanding Series A
Stock shall be entitled, before any distribution or payment is made upon any of
the Junior Liquidation Stock, to be paid in cash an amount equal to $50 per
share of Series A Stock so held by them plus all accrued and unpaid dividends
thereon (whether or not earned or declared) to the date fixed for such payment.
If upon Liquidation, the amounts payable with respect to shares of Series A
Stock and to any other shares of the capital stock of the corporation ranking as
to any such distribution on a parity with the Series A Stock are not paid in
full, the holders of shares of the Series A Stock and of such other shares shall
share ratably in any such distribution of assets of the corporation in
proportion to the full respective preferential amounts to which they are
entitled.
Notice of Liquidation, stating the date when and the place where the amount
payable on Liquidation will be paid, shall be sent by the Clerk of the
corporation by first class mail, postage prepaid, at least thirty (30) but no
more than sixty (60) days prior to the date fixed for such liquidation payment,
to the holders of the shares of the Series A Stock, at their respective
addresses appearing on the books of the corporation. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice, and failure duly to give
such notice by mail to any holder of shares of Series A Stock, or any defect in
such notice, shall not affect the validity of the proceedings for the making of
liquidation payments on any other shares of the Series A Stock or of any other
series or class of the capital stock of the corporation. If such notice shall
have been duly mailed and if, on or before the date fixed for liquidation
payments designated in such notice, the funds necessary for such liquidation
payments shall have been provided by the corporation in accordance with the
provisions of the following sentence, then, notwithstanding that any certificate
of shares of Series A Stock shall not have been delivered for cancellation, the
shares represented
10
thereby shall no longer be deemed outstanding on and after the date such funds
shall have been so provided, the dividends thereon shall cease to accrue from
and after the date fixed for such liquidation payments so designated, and all
rights with respect to the shares of the Series A Stock shall terminate
forthwith after such liquidation payment date, excepting only the right of the
holder to receive the liquidation price thereof of $50 per share plus unpaid
dividends accrued to such liquidation payment date but without interest thereon.
The corporation's obligation to provide funds for liquidation payments shall be
deemed fulfilled if, on or before the liquidation payment date, the corporation
shall deposit with a bank or trust company (which may be an affiliate of the
corporation), having capital and surplus of at least $50,000,000, funds
necessary for such liquidation payments, in trust, with irrevocable instructions
that such funds be applied to such liquidation payments. Any interest accrued on
such funds shall be paid to the corporation from time to time. Any funds so
deposited and unclaimed at the end of five years from such liquidation payment
date shall be released or repaid to the corporation, after which the holder or
holders of shares of Series A Stock shall look only to the corporation for
payment of liquidation payments.
5. DIVIDENDS.
(a) Dividend Rate. Dividends on each share of the Series A Stock shall be
payable (i) at a quarterly rate of 10.60% per annum for the quarter ended June
15, 1984 and (ii) for each quarterly dividend period commencing on or after
June 16, 1984, at a rate computed by multiplying $50 by the Applicable Rate
(as defined herein) for such period and multiplying the result by the fraction
of a year represented by such period, based upon a year of 365 or 366 days, as
the case may be.
(b) Payment of Dividends. Dividends on each share of the Series A Stock shall
be fully cumulative and shall accrue whether or not earned, without interest,
from the date of issuance of each share, and shall be payable in arrears on
the 15th day of March, June, September and December in each year in which such
shares are outstanding out of funds legally available for the payment of
dividends, when, as and if declared by the Board of Directors.
11
In the event that there shall be outstanding shares of any other series of the
Preferred Stock or of any other class of the capital stock of the corporation
ranking on a parity as to dividends with shares of the Series A Stock, the
corporation, in making any dividend payment on account of arrears on shares of
the Series A Stock or such other series of the Preferred Stock or such other
class of capital stock, shall make payment ratably upon all outstanding shares
of the Series A Stock, such other series of the Preferred Stock and such other
class of capital stock in proportion to the respective amounts of dividends in
arrears upon all such outstanding shares of the Series A Stock, such other
series of the Preferred Stock and such other class of capital stock to the
date of such dividend payment.
So long as any shares of the Series A Stock are outstanding, the corporation
shall not (i) declare or pay or set apart for payment any dividend or other
distribution (other than dividends or distributions payable in shares of
Junior Stock) for any period upon any Junior Stock or any stock of the
corporation ranking on a parity with the Series A Stock as to dividends or
upon Liquidation or (ii) redeem, purchase or otherwise acquire for any
consideration any shares of Junior Stock or any capital stock of the
corporation ranking on a parity with the Series A Stock as to dividends or
upon Liquidation, unless, in either case, all dividends payable to holders of
shares of the Series A Stock and of any stock of the corporation ranking on a
parity therewith as to dividends for its current dividend period and all past
dividend periods have been paid (or are contemporaneously being paid), or a
sum sufficient for the payment thereof has been irrevocably set aside in trust
for the holders of all such shares; except that, notwithstanding clause (i) of
this paragraph 5(b), the corporation may pay dividends on the shares of the
Series A Stock and shares of stock of the corporation ranking on a parity
therewith as to dividends ratably in accordance with the sums which would be
payable on such shares if all dividends, including accumulations, if any, were
declared and paid in full.
12
6. REDEMPTION.
(a) Redemption Price. Shares of the Series A Stock shall not be redeemable on
or prior to March 30, 1989. After March 30, 1989, and in accordance with this
paragraph 6, the shares of the Series A Stock shall be redeemable at any time
or from time to time, in whole or in part, at the option of the corporation by
vote of its Board of Directors; provided, however, that any partial
redemption, in the opinion of an investment banking firm of national
reputation selected by the corporation, shall not adversely affect the
marketability of those shares of Series A Stock not redeemed. The redemption
price shall be $51.50 per share if shares are redeemed on or prior to March
30, 1994 and $50 per share if shares are redeemed thereafter, plus in each
case an amount equal to all unpaid dividends, whether or not earned or
declared, accrued to the date fixed for redemption.
(b) Redemption Procedure. Notice of any proposed redemption of all or any of
the shares of the Series A Stock under this paragraph 6 shall be sent by the
Clerk of the corporation by first class mail, postage prepaid, at least thirty
(30) but not more than sixty (60) days prior to the date fixed for such
redemption, to the holders of the shares of the Series A Stock to be redeemed,
at their respective addresses appearing on the books of the corporation. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice, and failure duly to give such notice by mail to any holder of shares
of Series A Stock designated for redemption, or any defect in such notice,
shall not affect the validity of the proceedings for the redemption of any
other shares of the Series A Stock. If such notice of redemption shall have
been duly mailed and if, on or before the date fixed for redemption designated
in such notice, the funds necessary for the redemption shall have been
provided by the corporation in accordance with the provisions of the following
sentence, then notwithstanding that any certificate of shares of Series A
Stock so called for redemption shall not have been delivered for cancellation,
the shares represented thereby shall no longer be deemed outstanding on and
after the date such
13
funds shall have been so provided, the dividends thereon shall cease to accrue
from and after the date of redemption so designated, and all rights with
respect to the shares of the Series A Stock so called for redemption shall
terminate forthwith after such redemption date, excepting only the right of
each holder to receive the redemption price thereof plus unpaid dividends
accrued to such redemption date but without interest thereon. The
corporation's obligation to provide funds for redemption shall be deemed
fulfilled if, on or before the redemption date, the corporation shall deposit
with a bank or trust company (which may be an affiliate of the corporation),
having capital and surplus of at least $50,000,000, funds necessary for such
redemption, in trust, with irrevocable instructions that such funds be applied
to the redemption of the shares of Series A Stock so called for redemption.
Any interest accrued on such funds shall be paid to the corporation from time
to time. Any funds so deposited and unclaimed at the end of five years from
such redemption date shall be released or repaid to the corporation, after
which the holder or holders of such shares of Series A Stock so called for
redemption shall look only to the corporation for payment of the redemption
price.
(c) Pro Rata Redemption. If any proposed redemption of shares of the Series A
Stock shall be of less than all then outstanding shares of Series A Stock,
such redemption shall be made on a pro rata basis, as nearly as possible,
among all holders of shares of the Series A Stock outstanding at the time of
redemption in the same proportion that each such holder's then respective
holding of such shares shall bear to the aggregate number of such shares then
outstanding.
(d) Dividend Arrearages. Notwithstanding the foregoing provisions of this
paragraph 6, if any dividends on shares of the Series A Stock are in arrears,
no other shares of the Preferred Stock shall be redeemed, and the corporation
shall not purchase or otherwise acquire any shares of the Preferred Stock
unless all outstanding shares of the Series A Stock are simultaneously
redeemed in accordance with the foregoing provisions of this paragraph 6, and
the corporation shall not purchase or otherwise acquire any shares of the
Series A Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of
14
shares of the Series A Stock pursuant to a purchase or exchange offer made on
the same terms to holders of all outstanding shares of the Series A Stock.
7. VOTING RIGHTS.
(a) General. The holders of shares of Series A Stock shall not, by virtue of
their ownership thereof, be entitled to vote upon any matter except as
otherwise provided in the Articles of Organization or by law. Whenever the
holders of any shares of the Series A Stock shall be entitled to vote upon any
matter, each outstanding share of the Series A Stock entitled to vote on such
matter shall be entitled to one (1) vote.
(b) Two-Thirds Approval. So long as any shares of the Series A Stock are
outstanding, the corporation shall not, without first obtaining the consent,
given in writing or in person or by proxy or at a meeting called for the
purpose, of the holders of at least two-thirds (2/3rds) of the outstanding
shares of the Series A Stock:
(i) authorize or create any other class of capital stock (or series
thereof) the shares of which rank prior to shares of Preferred Stock in
respect of dividend payments or distributions or payments upon Liquidation;
or authorize, create or issue any bonds, notes, debentures, obligations,
stock or other securities by their terms convertible into or evidencing a
right to purchase shares of stock of any other class of capital stock (or
series thereof) the shares of which rank prior to the shares of Preferred
Stock in respect of dividend payments or distributions or payments upon
Liquidation;
(ii) authorize or create any other series of Preferred Stock, the shares of
which rank prior to shares of Series A Stock in respect of dividend
payments or distributions or payments upon Liquidation; or authorize,
create or issue any bonds, notes, debentures, obligations, stock or other
securities by their terms convertible into or evidencing a right to
purchase shares of any other series of Preferred Stock which rank prior to
the shares of Series A Stock in respect of dividend payments or
distributions or payments upon Liquidation;
15
(iii) reclassify any shares of any class of capital stock into a class
ranking prior to the Preferred Stock in respect of dividend payments or
distributions or payments upon Liquidation; reclassify any shares of
Preferred Stock into a series which ranks prior to Series A Stock in
respect of dividend payments or distributions or payments upon Liquidation;
or reclassify any shares of Junior Stock into Series A Stock; or
(iv) authorize any amendment to the Articles of Organization which would
adversely affect the rights of the holders of the Series A Stock. For the
purposes of this subparagraph (iv), the term "adversely affects" shall have
the meaning as it has in Section 77 of Chapter 156B of the Massachusetts
General Laws, as in effect on April 29, 1983.
(c) Special Voting Rights. Notwithstanding the foregoing, in the event that,
at any time after the date of original issue of the shares of the Series A
Stock, an amount equal to the full accrued dividends for six or more quarterly
dividend periods, whether or not consecutive, shall not have been paid or
declared and a sum sufficient for the payment thereof irrevocably set aside in
trust for the holders of all of such shares, the Board of Directors of the
corporation shall promptly take all necessary actions to increase the
authorized number of directors of the corporation by one (1) and the holders
of the shares of the Series A Stock then outstanding shall be entitled (by
series, voting as a single class) to elect one (1) person director to the
Board of Directors of the corporation (such right to elect one (1) director
being hereinafter sometimes referred to as the "special voting rights"), each
outstanding share having such right being entitled for such purpose to one
vote; provided, however, that at such time as the arrearage in payment of
dividends which gave rise to the exercise of the special voting rights has
been cured with regard to the Series A Stock by waiver or payment of all
accrued dividends, the right of the holders of such shares so to vote as
provided in this paragraph 7(c) shall cease (subject to renewal from time to
time upon the same terms and conditions) and the term of office of the person
who is at that time a director elected by
16
such holders shall terminate and the number of directors of the corporation
shall be automatically reduced by one (1).
(d) Special Voting Rights; Procedure. At any time after the special voting
rights shall have become vested in the holders of the shares of the Series A
Stock as provided in paragraph 7(c), the Clerk of the corporation, as promptly
as possible but in any event within twenty (20) days after receipt of the
written request of the holders of 10% of the shares of the Series A Stock then
outstanding, addressed to the corporation at its principal office, shall call
a special meeting of the holders of the shares of the Series A Stock for the
purpose of electing such additional director, such meeting to be held at any
place as provided by the By-Laws of the corporation for meetings of the
corporation's stockholders, and upon not less than ten (10) nor more than
twenty (20) days notice. If such meeting shall not be so called within twenty
(20) days after receipt of the request by the Clerk of the corporation, then
the holders of 10% of the shares of the Series A Stock then outstanding may,
by written notice to the Clerk of the corporation, designate any person to
call such meeting, and the person so designated may call such meeting at any
such place as provided above and upon not less than ten (10) nor more than
twenty (20) days notice and for that purpose shall have access to the
stockholder record books of the corporation. No such special meeting of the
holders of the shares of the Series A Stock and no adjournment thereof shall
be held on a date later than thirty days before the annual meeting of
stockholders of the corporation. At any meeting so called or at any annual
meeting held at any time when the special voting rights are in effect, the
holders of a majority of the shares of the Series A Stock then outstanding,
present in person or by proxy, shall be sufficient to constitute a quorum for
the election of such additional director, and such additional director,
together with any and all other directors who are then members of the Board of
Directors, shall constitute the duly elected directors of the corporation.
(e) Vacancy in Office of Director Elected by Holders of Series A Stock. With
respect to a vacancy arising in the directorship referred to in paragraph 7(c)
at any time
17
when the special voting rights are in effect pursuant to paragraph 7(c), upon
the written request of the holders of 10% of the shares of the Series A Stock
then outstanding, addressed to the corporation at its principal office, the
Clerk of the corporation shall give notice of a special meeting of holders of
the shares of the Series A Stock of the election of a director to fill such
vacancy caused by the death, resignation or other inability to serve as a
director elected by such holders, to be held not less than ten (10) nor more
than twenty (20) days following receipt by the Clerk of the corporation of
such written request. So long as special voting rights are in effect pursuant
to paragraph 7(c), any director who shall have been so elected by the holders
of the Series A Stock may be removed at any time, either with or without
cause, only by the affirmative vote of the holders of the shares at the time
entitled to cast a majority of the votes entitled to be cast for the election
of such director at a special meeting of such holders called for that purpose,
and any vacancy thereby created may be filled by the vote of such holders.
8. STATUS OF REDEEMED SHARES OF SERIES A STOCK. All shares of Series A Stock
which have been redeemed by the corporation pursuant to paragraph 6 shall have,
after such redemption, the status of authorized but unissued shares of Preferred
Stock without designation of series and may be reissued but not as shares of
Series A Stock.
(D) Preferred Stock, Series B
1. DEFINITIONS OF CERTAIN EXPRESSIONS USED IN THIS PARAGRAPH. As used in this
Article 4, the following capitalized words and expressions have the respective
meanings set out below:
"Applicable Rate" Except as provided below in this definition, the Applicable
Rate for any quarterly dividend period commencing on or after September 16,
1985 shall be (x) 2.20% less than (y) the highest of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate and the Twenty Year Constant Maturity
Rate (each as hereinafter defined) for such dividend period. If the
corporation determines in good faith that:
18
(i) any one of the Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Twenty Year Constant Maturity Rate cannot be determined for any
particular quarterly dividend period, then the Applicable Rate for such
dividend period shall be 2.20% less than the higher of whichever two of such
rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Twenty Year Constant Maturity Rate can be determined for any
particular quarterly dividend period, then the Applicable Rate for such
dividend period shall be 2.20% less than the rate that can be so determined;
or
(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and
the Twenty Year Constant Maturity Rate can be determined for any particular
quarterly dividend period, then the Applicable Rate in effect for the
preceding quarterly dividend period shall be continued for such dividend
period.
However, the Applicable Rate for any quarterly dividend period shall in no event
be less than six percent (6%) per annum nor greater than thirteen percent (13%)
per annum.
"Articles of Organization" means the Articles of Organization of the
corporation as amended and in effect from time to time, including the
amendment thereof effected pursuant to this paragraph.
"Board of Governors" means the Board of Governors of the Federal Reserve
System or any governmental entity which may be granted the powers referred to
herein currently exercised by the Board of Governors.
"Calendar Period" means a period of fourteen calendar days.
"Common Stock" means the capital stock of the corporation so designated and
authorized from time to time and being stock which is junior to all series of
the Preferred Stock in respect of dividend payments and of distributions or
payments upon Liquidation.
19
"corporation" means Bank of Boston Corporation and includes any successor
corporation by merger, consolidation or otherwise if the stockholders of the
former continue as stockholders of the continuing or combined corporation.
"Junior Dividend Stock" means (i) the Common Stock and (ii) any series of the
Preferred Stock which is specifically made junior to the Series B Stock and
any class of capital stock of the corporation which is specifically made
junior to the Preferred Stock, in respect of payments of dividends.
"Junior Liquidation Stock" means (i) the Common Stock and (ii) any series of
the Preferred Stock which is specifically made junior to the Series B Stock
and any class of capital stock of the corporation which is specifically made
junior to the Preferred Stock, in respect of distributions or payments upon
Liquidation.
"Junior Stock" means the Common Stock, the Junior Dividend Stock and the
Junior Liquidation Stock.
"Liquidation" means the voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding up of the corporation, but shall not
include (i) the merger or consolidation of the corporation with another
corporation pursuant to any statute which provides in effect that the
stockholders of the former shall continue as stockholders of the continuing
or combined corporation and (ii) the acquisition by the corporation of assets
or stock of another corporation.
"Preferred Stock" means the authorized class of the capital stock of the
corporation so designated of which there are currently 10,000,000 shares
authorized.
"Series B Stock" means the series of Preferred Stock created by this
paragraph.
"Special Securities" means securities which can, at the option of the holder,
be surrendered at face value in payment of federal estate taxes or which
provide tax benefits for the holder and are priced to reflect such
20
tax benefits or which were issued at a deep or substantial discount.
"Ten Year Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of 10 years).
"Ten Year Constant Maturity Rate" Except as provided below in this
definition, the Ten Year Constant Maturity Rate for each quarterly dividend
period shall be the arithmetic average (rounded, if not a whole multiple of
five hundredths of a percentage point, to the nearest whole such fraction of
a percentage point) of the two most recent weekly per annum Ten Year Average
Yields (or the one weekly per annum Ten Year Average Yield, if only one such
yield shall be published during the relevant Calendar Period) as published
weekly by the Board of Governors during the Calendar Period immediately prior
to the 10 calendar days preceding the 15th day of March, June, September or
December, as the case may be, occurring prior to the commencement of the
dividend period for which the dividend rate on the shares of the Series B
Stock is being determined. If the Board of Governors does not publish such a
weekly per annum Ten Year Average Yield during any such Calendar Period, then
the Ten Year Constant Maturity Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum Ten Year Average
Yields (or the one weekly per annum Ten Year Average Yield, if only one such
yield shall be published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the corporation. If a per annum
Ten Year Average Yield shall not be published by the Board of Governors or by
any Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Ten Year Constant Maturity Rate for
such dividend period shall be the arithmetic average of the two most recent
weekly per annum average yields to maturity (or the one weekly per annum
average yield to maturity, if only one such yield shall be published during
the relevant Calendar Period) for all of the actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities) then
having maturities of not less than eight
21
nor more than 12 years, as published for such Calendar Period by the Board of
Governors or, if the Board of Governors shall not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or agency selected
by the corporation. If the corporation determines in good faith that for any
reason the corporation cannot determine the Ten Year Constant Maturity Rate
for any dividend period as provided above in this paragraph, then the Ten
Year Constant Maturity Rate for such dividend period shall be the arithmetic
average of the per annum average yields to maturity based upon the closing
bids during such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than eight nor more than 12
years from the date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the corporation by at least three
recognized dealers in U.S. Government securities selected by the corporation.
"Treasury Bill Rate" Except as provided below in this definition, the
Treasury Bill Rate for any quarterly dividend period shall be the arithmetic
average (rounded, if not a whole multiple of five hundredths of a percentage
point, to the nearest whole such fraction of a percentage point) of the two
most recent weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall be published during
the relevant Calendar Period) for three-month U.S. Treasury bills, as
published weekly by the Board of Governors during the Calendar Period
immediately prior to the 10 calendar days preceding the 15th day of March,
June, September or December, as the case may be, occurring prior to the
commencement of the dividend period for which the dividend rate on the shares
of the Series B Stock is being determined. If the Board of Governors does not
publish such a weekly per annum market discount rate during any such Calendar
Period, then the Treasury Bill Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum market discount
rates (or the one weekly per annum market discount rate, if only one such
rate shall be published during the relevant Calendar Period) for three-month
U.S.
22
Treasury bills, as published weekly during such Calendar Period by any
Federal Reserve Bank or any U.S. Government department or agency selected by
the corporation. If a per annum market discount rate for three-month U.S.
Treasury bills shall not be published by the Board of Governors or by any
Federal Reserve Bank or by any U.S. Government department or agency during
such Calendar Period, then the Treasury Bill Rate for such dividend period
shall be the arithmetic average of the two most recent weekly per annum
market discount rates (or the one weekly per annum market discount rate, if
only one such rate shall be published during the relevant Calendar Period) of
all of the U.S. Treasury Bills then having maturities of not less than 80 nor
more than 100 days, as published during such Calendar Period by the Board of
Governors or, if the Board of Governors shall not publish such rates, by any
Federal Reserve Bank or by any such U.S. Government department or agency
selected by the corporation. If the corporation determines in good faith that
for any reason no such U.S. Treasury Bill rates are published as provided
above during such Calendar Period, then the Treasury Bill Rate for such
dividend period shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar Period for
each of the issues of marketable non-interest bearing U.S. Treasury
securities with a maturity of not less than 80 or more than 100 days from the
date of each such quotation, as chosen and quoted daily for each business day
in New York City (or less frequently if daily quotations shall not be
generally available) to the
23
corporation by at least three recognized dealers in U.S. Government
securities selected by the corporation.
"Twenty Year Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of 20 years).
"Twenty Year Constant Maturity Rate" Except as provided below in this
definition, the Twenty Year Constant Maturity Yield for any quarterly
dividend period shall be the arithmetic average (rounded, if not a whole
multiple of five hundredths of a percentage point, to the nearest whole such
fraction of a percentage point) of the two most recent weekly per annum
Twenty Year Average Yields (or the one weekly per annum Twenty Year Average
Yield, if only one such yield shall be published during the relevant Calendar
Period), as published weekly by the Board of Governors during the Calendar
Period immediately prior to the 10 calendar days preceding the 15th day of
March, June, September or December, as the case may be, occurring prior to
the commencement of the dividend period for which the dividend rate on the
shares of the Series B Stock is being determined. If the Board of Governors
does not publish such a weekly per annum Twenty Year Average Yield during any
such Calendar Period, then the Twenty Year Constant Maturity Rate for such
dividend period shall be the arithmetic average of the two most recent weekly
per annum Twenty Year Average Yields, (or the one weekly per annum Twenty
Year Average Yield, if only one such yield shall be published during the
relevant Calendar Period), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by the corporation. If a per annum Twenty Year Average Yield shall
not be published by the Board of Governors or by any Federal Reserve Bank or
by any U.S. Government department or agency during such Calendar Period, then
the Twenty Year Constant Maturity Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum average yields to
maturity (or the one weekly per annum average yield to maturity, if only one
such yield shall be published during the relevant Calendar Period) for all of
the actively traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities)
24
then having maturities of not less than 18 nor more than 22 years, as
published during such Calendar Period by the Board of Governors or, if the
Board of Governors shall not publish such yields, by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the corporation.
If the corporation determines in good faith that for any reason the
corporation cannot determine the Twenty Year Constant Maturity Rate for any
dividend period as provided above in this paragraph, then the Twenty Year
Constant Maturity Rate for such dividend period shall be the arithmetic
average of the per annum average yields to maturity based upon the closing
bids during such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than 18 nor more than 22
years from the date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the corporation by at least three
recognized dealers of national reputation in U.S. Government securities
selected by the corporation.
2. NUMBER OF SHARES AND DESIGNATION. 1,576,068 shares of Preferred Stock are
hereby constituted as a series of Preferred Stock, liquidation preference $50
per share, and designated as Adjustable Rate Cumulative Preferred Stock, Series
B. No additional shares of Preferred Stock may be issued as Series B Stock.
3. PREFERENCES. The preferences of each share of the Series B Stock with
respect to dividend payments or to distributions or payments upon Liquidation
will be in every respect on a parity with the preferences of every other share
of Preferred Stock and of every other class of the capital stock of the
corporation (other than Common Stock), from time to time outstanding, which
other shares of the Preferred Stock and which other classes of capital stock are
not made senior or junior to the Series B Stock as to dividend payments or to
distributions or payments upon Liquidation.
4. LIQUIDATION. Upon Liquidation, the holders of the then outstanding Series
B Stock shall be entitled, before any distribution or payment is made upon any
of the Junior
25
Liquidation Stock, to be paid in cash an amount equal to $50 per share of Series
B Stock so held by them plus all accrued and unpaid dividends thereon (whether
or not earned or declared) to the date fixed for such payment. If upon
Liquidation, the amounts payable with respect to shares of Series B Stock and to
any other shares of the capital stock of the corporation ranking as to any such
distribution on a parity with the Series B Stock are not paid in full, the
holders of shares of the Series B Stock and of such other shares shall share
ratably in any such distribution of assets of the corporation in proportion to
the full respective preferential amounts to which they are entitled.
Notice of Liquidation, stating the date when and the place where the amount
payable on Liquidation will be paid, shall be sent by the Clerk of the
corporation by first class mail, postage prepaid, at least thirty (30) but no
more than sixty (60) days prior to the date fixed for such liquidation payment,
to the holders of the shares of the Series B Stock, at their respective
addresses appearing on the books of the corporation. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice, and failure duly to give
such notice by mail to any holder of shares of Series B Stock, or any defect in
such notice, shall not affect the validity of the proceedings for the making of
liquidation payments on any other shares of the Series B Stock or of any other
series or class of the capital stock of the corporation. If such notice shall
have been duly mailed and if, on or before the date fixed for liquidation
payments designated in such notice, the funds necessary for such liquidation
payments shall have been provided by the corporation in accordance with the
provisions of the following sentence, then, notwithstanding that any certificate
of shares of Series B Stock shall not have been delivered for cancellation, the
shares represented thereby shall no longer be deemed outstanding on and after
the date such funds shall have been set aside, the dividends thereon shall cease
to accrue from and after the date fixed for such liquidation payments so
designated, and all rights with respect to the shares of the Series B Stock
shall terminate forthwith after such liquidation payment date, excepting only
the right of the holder to receive the liquidation price thereof of $50 per
share plus unpaid dividends accrued to such liquidation payment date but
26
without interest thereon. The corporation's obligation to provide funds for
liquidation payments shall be deemed fulfilled if, on or before the liquidation
payment date, the corporation shall deposit with a bank or trust company (which
may be an affiliate of the corporation), having a capital and surplus of at
least $50,000,000, funds necessary for such liquidation payments, in trust, with
irrevocable instructions that such funds be applied to such liquidation
payments. Any interest accrued on such funds shall be paid to the corporation
from time to time. Any funds so deposited and unclaimed at the end of five years
from such liquidation payment date shall be released or repaid to the
corporation, after which the holder or holders of shares of Series B Stock shall
look only to the corporation for payment of liquidation payments.
5. DIVIDENDS.
(a) Dividend Rate. Dividends on each share of the Series B Stock shall be
payable (i) at a quarterly rate of 8.30% per annum for the quarter ended
September 15, 1985, and (ii) for each quarterly dividend period commencing on
or after September 16, 1985, at a rate computed by multiplying $50 by the
Applicable Rate (as defined herein) for such period and multiplying the result
by the fraction of a year represented by such period, based upon a year of 365
or 366 days, as the case may be.
(b) Payment of Dividends. Dividends on each share of the Series B Stock shall
be fully cumulative and shall accrue whether or not earned, without interest,
from the date of issuance of each share, and shall be payable in arrears on
the 15th day of March, June, September, and December in each year in which
such shares are outstanding out of funds legally available for the payment of
dividends, when, as and if declared by the Board of Directors.
In the event that there shall be outstanding shares of any other series of the
Preferred Stock or of any other class of the capital stock of the corporation
ranking on a parity as to dividends with shares of the Series B Stock, the
corporation, in making any dividend payment on account of arrears on shares of
the Series B Stock or such other
27
series of the Preferred Stock or such other class of capital stock, shall make
payment ratably upon all outstanding shares of the Series B Stock, such other
series of the Preferred Stock and such other class of capital stock in
proportion to the respective amounts of dividends in arrears upon all such
outstanding shares of the Series B Stock, such other series of the Preferred
Stock and such other class of capital stock to the date of such dividend
payment.
So long as any shares of the Series B Stock are outstanding, the corporation
shall not (i) declare or pay or set apart for payment any dividend or other
distribution (other than dividends or distributions payable in shares of
Junior Stock) for any period upon any Junior Stock or any stock of the
corporation ranking on a parity with the Series B Stock as to dividends or
upon Liquidation or (ii) redeem, purchase or otherwise acquire for any
consideration any shares of Junior Stock or any capital stock of the
corporation ranking on a parity with the Series B Stock as to dividends or
upon Liquidation, unless, in either case, all dividends payable to holders of
shares of the Series B Stock and of any stock of the corporation ranking on a
parity therewith as to dividends for its current dividend period and all past
dividend periods have been paid (or are contemporaneously being paid), or a
sum sufficient for the payment thereof has been irrevocably set aside in trust
for the holders of all such shares; except that, notwithstanding clause (i) of
this paragraph 5(b) the corporation may pay dividends on the shares of the
Series B Stock and shares of stock of the corporation ranking on a parity
therewith as to dividends ratably in accordance with the sums which would be
payable on such shares if all dividends, including accumulations, if any, were
declared and paid in full.
6. REDEMPTION.
(a) Redemption Price. Shares of the Series B Stock shall not be redeemable on
or prior to June 20, 1990. After June 20, 1990, and in accordance with this
paragraph 6, the shares of the Series B Stock shall be redeemable at any time
or from time to time, in whole or in part, at the option of the corporation by
vote of its Board of Directors; provided, however, that any partial
redemption,
28
in the opinion of an investment banking firm of national reputation selected
by the corporation, shall not adversely affect the marketability of those
shares of Series B Stock not redeemed. The redemption price shall be $51.50
per share if shares are redeemed on or prior to June 20, 1995 and $50 per
share if shares are redeemed thereafter, plus in each case an amount equal to
all unpaid dividends, whether or not earned or declared, accrued to the date
fixed for redemption.
(b) Redemption Procedure. Notice of any proposed redemption of all or
any of the shares of the Series B Stock under this paragraph 6 shall be sent
by the Clerk of the corporation by first class mail, postage prepaid, at least
thirty (30) but not more than sixty (60) days prior to the date fixed for such
redemption, to the holders of the shares of the Series B Stock to be redeemed,
at their respective addresses appearing on the books of the corporation. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice, and failure duly to give such notice by mail to any holder of shares
of Series B Stock designated for redemption, or any defect in such notice,
shall not affect the validity of the proceedings for the redemption of any
other shares of the Series B Stock. If such notice of redemption shall have
been duly mailed and if, on or before the date fixed for redemption designated
in such notice, the funds necessary for the redemption shall have been
provided by the corporation in accordance with the provisions of the following
sentence, then, notwithstanding that any certificate of shares of Series B
Stock so called for redemption shall not have been delivered for cancellation,
the shares represented thereby shall no longer be deemed outstanding on and
after the date such funds shall have been set aside, the dividends thereon
shall cease to accrue from and after the date of redemption so designated, and
all rights with respect to the shares of the Series B Stock so called for
redemption shall terminate forthwith after such redemption date, excepting
only the right of each holder to receive the redemption price thereof plus
unpaid dividends accrued to such redemption date but without interest thereon.
The corporation's obligation to provide funds for redemption shall be deemed
fulfilled if, on or before the redemption
29
date, the corporation shall deposit with a bank or trust company (which may be
an affiliate of the corporation), having a capital and surplus of at least
$50,000,000, funds necessary for such redemption, in trust, with irrevocable
instructions that such funds be applied to the redemption of the shares of
Series B Stock so called for redemption. Any interest accrued on such funds
shall be paid to the corporation from time to time. Any funds so deposited and
unclaimed at the end of five years from such redemption date shall be released
or repaid to the corporation, after which the holder or holders of shares of
Series B Stock so called for redemption shall look only to the corporation for
payment of the redemption price.
(c) Pro Rata Redemption. If any proposed redemption of shares of the Series B
Stock shall be less than all then outstanding shares of Series B Stock, such
redemption shall be made on a pro rata basis, as nearly as possible, among all
holders of shares of the Series B Stock outstanding at the time of redemption
in the same proportion that each such holder's then respective holding of such
shares shall bear to the aggregate number of such shares then outstanding.
(d) Dividend Arrearages. Notwithstanding the foregoing provisions of this
paragraph 6, if any dividends on shares of the Series B Stock are in arrears,
no other shares of the Preferred Stock shall be redeemed, and the corporation
shall not purchase or otherwise acquire any shares of the Preferred Stock,
unless all outstanding shares of the Series B Stock are simultaneously
redeemed in accordance with the foregoing provisions of this paragraph 6, and
the corporation shall not purchase or otherwise acquire any shares of the
Series B Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of the Series B Stock pursuant to a purchase
or exchange offer made on the same terms to holders of all outstanding shares
of the Series B Stock.
7. VOTING RIGHTS.
(a) General. The holders of shares of Series B Stock shall not, by virtue of
their ownership thereof, be entitled to vote upon any matter except as
otherwise provided in the Articles of Organization or by law.
30
Whenever the holders of any shares of the Series B Stock shall be entitled to
vote upon any matter, each outstanding share of the Series B Stock entitled to
vote on such matter shall be entitled to one (1) vote.
(b) Two-Thirds Approval. So long as any shares of the Series B Stock are
outstanding, the corporation shall not, without first obtaining the consent,
given in writing or in person or by proxy or at a meeting called for the
purpose, of the holders of at least two-thirds (2/3rds) of the outstanding
shares of the Series B Stock:
(i) authorize or create any other class of capital stock (or series
thereof), the shares of which rank prior to shares of Preferred Stock in
respect of dividend payments or distributions or payments upon Liquidation;
or authorize, create or issue any bonds, notes, debentures, obligations,
stock or other securities by their terms convertible into or evidencing a
right to purchase shares of stock of any other class of capital stock (or
series thereof) the shares of which rank prior to the shares of Preferred
Stock in respect of dividend payments or distributions or payments upon
Liquidation;
(ii) authorize or create any other series of Preferred Stock, the shares of
which rank prior to shares of Series B Stock in respect of dividend payments
or distributions or payments upon Liquidation; or authorize, create or issue
any bonds, notes, debentures, obligations, stock or other securities by
their terms convertible into or evidencing a right to purchase shares of any
other series of Preferred Stock which rank prior to the shares of Series B
Stock in respect of dividend payments or distributions or payments upon
Liquidation;
(iii) reclassify any shares of any class of capital stock into a class
ranking prior to the Preferred Stock in respect of dividend payments or
distributions or payments upon Liquidation; reclassify any shares of
Preferred Stock into a series which ranks prior to Series B Stock in respect
of dividend payments or distributions or payments upon Liquidation; or
reclassify any shares of Junior Stock into Series B Stock; or
31
(iv) authorize any amendment to the Articles of Organization which would
adversely affect the rights of the holders of the Series B Stock. For the
purposes of this subparagraph (iv), the term "adversely affects" shall have
the same meaning as it has in Section 77 of Chapter 156B of the
Massachusetts General Laws, as in effect on November 25, 1983.
(c) Special Voting Rights. Notwithstanding the foregoing, in the event that,
at any time after the date of original issue of the shares of the Series B
Stock, an amount equal to the full accrued dividends for six (6) or more
quarterly dividend periods, whether or not consecutive, shall not have been
paid or declared and a sum sufficient for the payment thereof irrevocably set
aside in trust for the holders of all of such shares, the Board of Directors
of the corporation shall promptly take all necessary actions to increase the
authorized number of directors of the corporation by one (1) and the holders
of the shares of the Series B Stock then outstanding shall be entitled (by
series, voting as a single class) to elect one (1) person director to the
Board of Directors of the corporation (such right to elect one (1) director
being hereinafter sometimes referred to as the "special voting rights"), each
outstanding share having such right being entitled for such purpose to one
vote; provided, however, that at such time as the arrearage in payment of
dividends which gave rise to the exercise of the special voting rights has
been cured with regard to the Series B Stock by waiver or payment of all
accrued dividends, the right of the holders of such shares so to vote as
provided in this paragraph 7(c) shall cease (subject to renewal from time to
time upon the same terms and conditions) and the term of office of the person
who is at that time a director elected by such holders shall terminate and the
number of directors of the corporation shall be automatically reduced by one
(1).
(d) Special Voting Rights; Procedure. At any time after the special voting
rights shall have become vested in the holders of the shares of the Series B
Stock as provided in paragraph 7(c), the Clerk of the corporation, as promptly
as possible but in any event within twenty (20) days after receipt of the
written request of the holders of 10% of
32
the shares of the Series B Stock then outstanding, addressed to the
corporation at its principal office, shall call a special meeting of the
holders of the shares of the Series B Stock for the purpose of electing such
additional director, such meeting to be held at any place as provided by the
By-Laws of the corporation for meetings of the corporation's stockholders, and
upon not less than ten (10) nor more than twenty (20) days notice. If such
meeting shall not be so called within twenty (20) days after receipt of the
request by the Clerk of the corporation, then the holders of 10% of the shares
of the Series B Stock then outstanding may, by written notice to the Clerk of
the corporation, designate any person to call such meeting, and the person so
designated may call such meeting, at any such place as provided above and upon
not less than ten (10) nor more than twenty (20) days notice and for that
purpose shall have access to the stockholder record books of the corporation.
No such special meeting of the holders of the shares of the Series B Stock and
no adjournment thereof shall be held on a date later than thirty (30) days
before the annual meeting of stockholders of the corporation. At any meeting
so called or at any annual meeting held at any time when the special voting
rights are in effect, the holders of a majority of the shares of the Series B
Stock then outstanding, present in person or by proxy, shall be sufficient to
constitute a quorum for the election of such additional director, and such
additional director, together with any and all other directors who are then
members of the Board of Directors, shall constitute the duly elected directors
of the corporation.
(e) Vacancy in Office of Director Elected by Holders of Series B Stock. With
respect to a vacancy arising in the directorship referred to in paragraph 7(c)
at any time when the special voting rights are in effect pursuant to paragraph
7(c), upon the written request of the holders of 10% of the shares of the
Series B Stock then outstanding, addressed to the corporation at its principal
office, the Clerk of the corporation shall give notice of a special meeting of
holders of the shares of the Series B Stock of the election of a director to
fill such vacancy caused by the death, resignation or other inability to serve
as a director elected by such holders, to be held not less than ten (10) nor
more than twenty (20) days following receipt
33
by the Clerk of the corporation of such written request. So long as special
voting rights are in effect pursuant to paragraph 7(c), any director who shall
have been so elected by the holders of the Series B Stock may be removed at
any time, either with or without cause, only by the affirmative vote of the
holders of the shares at the time entitled to cast a majority of the votes
entitled to be cast for the election of such director at a special meeting of
such holders called for that purpose, and any vacancy thereby created may be
filled by the vote of such holders.
8. STATUS OF REDEEMED SHARES OF SERIES B STOCK. All shares of the Series B
Stock which have been redeemed by the corporation pursuant to paragraph 6 shall
have, after such redemption, the status of authorized but unissued shares of
Preferred Stock without designation of series and may be reissued but not as
shares of Series B Stock.
(E) Preferred Stock, Series C
1. DEFINITIONS OF CERTAIN EXPRESSIONS USED IN THIS PARAGRAPH. As used in this
Article 4, the following capitalized words and expressions have the respective
meanings set out below:
"Applicable Rate" Except as provided below in this definition, the Applicable
Rate for any quarterly dividend period commencing on or after December 16,
1985 shall be (x) 2.75% less than (y) the highest of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate and the Twenty Year Constant Maturity Rate
(each as hereinafter defined) for such dividend period. If the corporation
determines in good faith that:
(i) any one of the Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Twenty Year Constant Maturity Rate cannot be determined for any
particular quarterly dividend period, then the Applicable Rate for such
dividend period shall be 2.75% less than the higher of whichever two of such
rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Twenty Year Constant Maturity Rate can be determined for any
particular
34
quarterly dividend period, then the Applicable Rate for such dividend period
shall be 2.75% less than the rate that can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Twenty Year Constant Maturity Rate can be determined for any
particular quarterly dividend period, then the Applicable Rate in effect for
the preceding quarterly dividend period shall be continued for such dividend
period.
However, the Applicable Rate for any quarterly dividend period shall in no
event be less than five and one-half percent (5 1/2%) per annum nor greater
than twelve and one-half percent (12 1/2%) per annum.
"Articles of Organization" means the Articles of Organization of the
corporation as amended and in effect from time to time, including the
amendment thereof effected pursuant to this paragraph.
"Board of Governors" means the Board of Governors of the Federal Reserve
System or any governmental entity which may be granted the powers referred
to herein currently exercised by the Board of Governors.
"Calendar Period" means a period of fourteen calendar days.
"Common Stock" means the capital stock of the corporation so designated and
authorized from time to time and being stock which is junior to all series
of the Preferred Stock in respect of dividend payments and of distributions
or payments upon Liquidation.
"corporation" means Bank of Boston Corporation and includes any successor
corporation by merger, consolidation or otherwise if the stockholders of the
former continue as stockholders of the continuing or combined corporation.
"Junior Dividend Stock" means (i) the Common Stock and (ii) any series of
the Preferred Stock which is specifically made junior to the Series C Stock,
and any class of capital stock of the corporation which is
35
specifically made junior to the Preferred Stock, in respect of payments of
dividends.
"Junior Liquidation Stock" means (i) the Common Stock and (ii) any series of
the Preferred Stock which is specifically made junior to the Series C Stock
and any class of capital stock of the corporation which is specifically made
junior to the Preferred Stock, in respect of distributions or payments upon
Liquidation.
"Junior Stock" means the Common Stock, the Junior Dividend Stock and the
Junior Liquidation Stock.
"Liquidation" means the voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding up of the corporation, but shall
not include (i) the merger or consolidation of the corporation with another
corporation pursuant to any statute which provides in effect that the
stockholders of the former shall continue as stockholders of the continuing
or combined corporation and (ii) the acquisition by the corporation of
assets or stock of another corporation.
"Preferred Stock" means the authorized class of the capital stock of the
corporation so designated of which there are currently 10,000,000 shares
authorized.
"Series C Stock" means the series of Preferred Stock created by this
paragraph.
"Special Securities" means securities which can, at the option of the
holder, be surrendered at face value in payment of federal estate taxes or
which provide tax benefits for the holder and are priced to reflect such tax
benefits or which were issued at a deep or substantial discount.
"Ten Year Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of 10 years).
"Ten Year Constant Maturity Rate" Except as provided below in this
definition, the Ten Year Constant Maturity Rate for each quarterly dividend
period shall be the
36
arithmetic average (rounded, if not a whole multiple of five hundredths of a
percentage point, to the nearest whole such fraction of a percentage point)
of the two most recent weekly per annum Ten Year Average Yields (or the one
weekly per annum Ten Year Average Yield, if only one such yield shall be
published during the relevant Calendar Period) as published weekly by the
Board of Governors during the Calendar Period immediately prior to the 10
calendar days preceding the 15th day of March, June, September or December,
as the case may be, occurring prior to the commencement of the dividend
period for which the dividend rate on the shares of the Series C Stock is
being determined. If the Board of Governors does not publish such a weekly
per annum Ten Year Average Yield during any such Calendar Period, then the
Ten Year Constant Maturity Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum Ten Year Average
Yields (or the one weekly per annum Ten Year Average Yield, if only one such
yield shall be published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the corporation. If a per
annum Ten Year Average Yield shall not be published by the Board of
Governors or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Ten Year Constant
Maturity Rate for such dividend period shall be the arithmetic average of
the two most recent weekly per annum average yields to maturity (or the one
weekly per annum average yield to maturity, if only one such yield shall be
published during the relevant Calendar Period) for all of the actively
traded marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) then having maturities of not less than eight nor more
than 12 years, as published for such Calendar Period by the Board of
Governors or, if the Board of Governors shall not publish such yields, by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by the corporation. If the corporation determines in good faith
that for any reason the corporation cannot determine the Ten Year Constant
Maturity Rate for any dividend period as provided above in this paragraph,
then the Ten Year Constant Maturity Rate for such dividend period shall be
the arithmetic average of the per annum average yields to maturity based
upon the
37
closing bids during such Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight nor more
than 12 years from the date of each such quotation, as chosen and quoted
daily for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the corporation by at least
three recognized dealers in the U.S. Government securities selected by the
corporation.
"Treasury Bill Rate" Except as provided below in this definition, the
Treasury Bill Rate for any quarterly dividend period shall be the arithmetic
average (rounded, if not a whole multiple of five hundredths of a percentage
point, to the nearest whole such fraction of a percentage point) of the two
most recent weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall be published during
the relevant Calendar Period) for three-month U.S. Treasury bills, as
published weekly by the Board of Governors during the Calendar Period
immediately prior to the 10 calendar days preceding the 15th day of March,
June, September or December, as the case may be, occurring prior to the
commencement of the dividend period for which the dividend rate on the
shares of the Series C Stock is being determined. If the Board of Governors
does not publish such a weekly per annum market discount rate during any
such Calendar Period, then the Treasury Bill Rate for such dividend period
shall be the arithmetic average of the two most recent weekly per annum
market discount rates, (or the one weekly per annum market discount rate, if
only one such rate shall be published during the relevant Calendar Period)
for three-month U.S. Treasury bills as published weekly during such Calendar
Period by any Federal Reserve Bank or any U.S. Government department or
agency selected by the corporation. If a per annum market discount rate for
three-month U.S. Treasury bills shall not be published by the Board of
Governors or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury Bill
Rate for such dividend period shall be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such
38
rate shall be published during the relevant Calendar Period) of all of the
U.S. Treasury bills then having maturities of not less than 80 nor more than
100 days, as published during such Calendar Period by the Board of Governors
or, if the Board of Governors shall not publish such rates, by any Federal
Reserve Bank or by any such U.S. Government department or agency selected by
the corporation. If the corporation determines in good faith that for any
reason no such U.S. Treasury bill rates are published as provided above
during such Calendar Period, or if for any reason the corporation cannot
determine the Treasury Bill Rate for any quarterly dividend period as
provided above in this paragraph, then the Treasury Bill Rate for such
dividend period shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar Period for
each of the issues of marketable non-interest bearing U.S. Treasury
securities with a maturity of not less than 80 nor more than 100 days from
the date of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily quotations shall
be generally available) to the corporation by at least three recognized
dealers in U.S. Government securities selected by the corporation.
"Twenty Year Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of 20 years.
"Twenty Year Constant Maturity Rate" Except as provided below in this
definition, the Twenty Year Constant Maturity Yield for any quarterly
dividend period shall be the arithmetic average (rounded, if not a whole
multiple of five hundredths of a percentage point, to the nearest whole such
fraction of a percentage point) of the two most recent weekly per annum
Twenty Year Average Yields (or the one weekly per annum Twenty Year Average
Yield, if only one such yield shall be published during the relevant
Calendar Period), as published weekly by the Board of Governors during the
Calendar Period immediately prior to the 10 calendar days preceding the 15th
day of March, June, September or December, as the case may be, occurring
prior to the commencement of the dividend period for which the dividend rate
on the shares of the Series C Stock is
39
being determined. If the Board of Governors does not publish such a weekly
per annum Twenty Year Average Yield during any such Calendar Period, then
the Twenty Year Constant Maturity Rate for such dividend period shall be the
arithmetic average of the two most recent weekly per annum Twenty Year
Average Yields (or the one weekly per annum Twenty Year Average Yield, if
only one such yield shall be published during the relevant Calendar Period),
as published weekly during such Calendar Period by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the corporation.
If a per annum Twenty Year Average Yield shall not be published by the Board
of Governors or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Twenty Year
Constant Maturity Rate for such dividend period shall be the arithmetic
average of the two most recent weekly per annum average yields to maturity
(or the one weekly per annum average yield to maturity, if only one such
yield shall be published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) then having maturities of not less than 18
nor more than 22 years, as published during such Calendar Period by the
Board of Governors or, if the Board of Governors shall not publish such
yields, by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the corporation. If the corporation determines in good
faith that for any reason the corporation cannot determine the Twenty Year
Constant Maturity Rate for any dividend period as provided above in this
paragraph, then the Twenty Year Constant Maturity Rate for such dividend
period shall be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during Calendar Period for each of the
issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not
less than 18 nor more than 22 years from the date of each such quotation, as
chosen and quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
corporation by at least three recognized dealers of national reputation in
U.S. Government securities selected by the corporation.
40
2. NUMBER OF SHARES AND DESIGNATION. 775,390 shares of Preferred Stock are
hereby constituted as a series of Preferred Stock, liquidation preference $100
per share, and designated as Adjustable Rate Cumulative Preferred Stock, Series
C. No additional shares of Preferred Stock may be issued as Series C Stock.
3. PREFERENCES. The preferences of each share of the Series C Stock with
respect to dividend payments or to distributions or payments upon Liquidation
will be in every respect on a parity with the preferences of every other share
of Preferred Stock and of every other class of the capital stock of the
corporation (other than Common Stock), from time to time outstanding, which
other shares of the Preferred Stock and which other classes of capital stock are
not made senior or junior to the Series C Stock as to dividend payments or to
distributions or payments upon Liquidation.
4. LIQUIDATION. Upon Liquidation, the holders of the then outstanding Series
C Stock shall be entitled, before any distribution or payment is made upon any
of the Junior Liquidation Stock, to be paid in cash an amount equal to $100 per
share of Series C Stock so held by them plus all accrued and unpaid dividends
thereon (whether or not earned or declared) to the date fixed for such payment.
If upon Liquidation, the amounts payable with respect to shares of Series C
Stock and to any other shares of the capital stock of the corporation ranking as
to any such distribution on a parity with the Series C Stock are not paid in
full, the holders of shares of the Series C Stock and of such other shares shall
share ratably in any such distribution of assets of the corporation in
proportion to the full respective preferential amounts to which they are
entitled.
Notice of Liquidation, stating the date when and the place where the amount
payable on Liquidation will be paid, shall be sent by the Clerk of the
corporation by first class mail, postage prepaid, at least thirty (30) but no
more than sixty (60) days prior to the date fixed for such liquidation payment,
to the holders of the shares of the Series C Stock, at their respective
addresses appearing on the books of the corporation. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice,
41
and failure duly to give such notice by mail to any holder of shares of Series C
Stock, or any defect in such notice, shall not affect the validity of the
proceedings for the making of liquidation payments on any other shares of the
Series C Stock or of any other series or class of the capital stock of the
corporation. If such notice shall have been duly mailed and if, on or before the
date fixed for liquidation payments designated in such notice, the funds
necessary for such liquidation payments shall have been provided by the
corporation in accordance with the provisions of the following sentence, then
notwithstanding that any certificate of shares of Series C Stock shall not have
been delivered for cancellation, the shares represented thereby shall no longer
be deemed outstanding on and after the date such funds shall have been so
provided, the dividends thereon shall cease to accrue from and after the date
fixed for such liquidation payments so designated, and all rights with respect
to the shares of the Series C Stock shall terminate forthwith after such
liquidation payment date, excepting only the right of the holder to receive the
liquidation price thereof of $100 per share plus unpaid dividends accrued to
such liquidation payment date but without interest thereon. The corporation's
obligation to provide funds for liquidation payments shall be deemed fulfilled
if, on or before the liquidation payment date, the corporation shall deposit
with a bank or trust company (which may be an affiliate of the corporation),
having a capital and surplus of at least $50,000,000, funds necessary for such
liquidation payments, in trust, with irrevocable instructions that such funds be
applied to such liquidation payments. Any interest accrued on such funds shall
be paid to the corporation from time to time. Any funds so deposited and
unclaimed at the end of five years from such liquidation payment date shall be
released or repaid to the corporation, after which the holder or holders of
shares of Series C Stock shall look only to the corporation for payment of
liquidation payments.
5. DIVIDENDS.
(a) Dividend Rate. Dividends on each share of the Series C Stock shall be
payable (i) at a quarterly rate of 7.70% per annum for the period ended
December 15, 1985, and (ii) for each quarterly dividend period commencing on
or after December 16, 1985, at a rate computed by multiplying $100
42
by the Applicable Rate (as defined herein) for such period and multiplying the
result by the fraction of a year represented by such period, based upon a year
of 365 or 366 days, as the case may be.
(b) Payment of Dividends. Dividends on each share of the Series C Stock
shall be fully cumulative and shall accrue whether or not earned, without
interest, from the date of issuance of each share, and shall be payable in
arrears on the 15th day of March, June, September and December in each year in
which such shares are outstanding out of funds legally available for the
payment of dividends, when, as and if declared by the Board of Directors.
In the event that there shall be outstanding shares of any other series of the
Preferred Stock or of any other class of the capital stock of the corporation
ranking on a parity as to dividends with shares of the Series C Stock, the
corporation, in making any dividend payment on account of arrears on shares of
the Series C Stock or such other series of the Preferred Stock or such other
class of capital stock, shall make payment ratably upon all outstanding shares
of the Series C Stock, such other series of the Preferred Stock and such other
class of capital stock in proportion to the respective amounts of dividends in
arrears upon all such outstanding shares of the Series C Stock, such other
series of the Preferred Stock and such other class of capital stock to the
date of such dividend payment.
So long as any shares of the Series C Stock are outstanding, the corporation
shall not (i) declare or pay or set apart for payment any dividend or other
distribution (other than dividends or distributions payable in shares of
Junior Stock) for any period upon any Junior Stock or any stock of the
corporation ranking on a parity with the Series C Stock as to dividends or
upon Liquidation or (ii) redeem, purchase or otherwise acquire for any
consideration any shares of Junior Stock or any capital stock of the
corporation ranking on a parity with the Series C Stock as to dividends or
upon Liquidation, unless, in either case, all dividends payable to holders of
shares of the Series C Stock and of any stock of the corporation ranking on a
parity therewith as to dividends for its current dividend period and all past
dividend
43
periods have been paid (or are contemporaneously being paid), or a sum
sufficient for the payment thereof has been irrevocably set aside in trust for
the holders of all such shares; except that, notwithstanding clause (i) of
this paragraph 5(b), the corporation may pay dividends on the shares of the
Series C Stock and shares of stock of the corporation ranking on a parity
therewith as to dividends ratably in accordance with the sums which would be
payable on such shares if all dividends, including accumulations, if any, were
declared and paid in full.
6. REDEMPTION.
(a) Redemption Price. Shares of the Series C Stock shall not be redeemable
on or prior to November 14, 1990. After November 14, 1990 and in accordance
with this paragraph 6, the shares of the Series C Stock shall be redeemable at
any time or from time to time, in whole or in part, at the option of the
corporation by vote of its Board of Directors; provided, however, that any
partial redemption, in the opinion of an investment banking firm of national
reputation selected by the corporation, shall not adversely affect the
marketability of those shares of Series C Stock not redeemed. The redemption
price shall be $103.00 per share if shares are redeemed on or prior to
November 14, 1995 and $100 per share if shares are redeemed thereafter, plus
in each case an amount equal to all unpaid dividends, whether or not earned or
declared, accrued to the date fixed for redemption.
(b) Redemption Procedure. Notice of any proposed redemption of all or any of
the shares of the Series C Stock under this paragraph 6 shall be sent by the
Clerk of the corporation by first class mail, postage prepaid, at least thirty
(30) but not more than sixty (60) days prior to the date fixed for such
redemption, to the holders of the shares of the Series C Stock to be redeemed,
at their respective addresses appearing on the books of the corporation. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice, and failure duly to give such notice by mail to any holder of shares
of Series C Stock designated for redemption, or any defect in such notice,
shall not affect the validity of the proceedings for the redemption of any
44
other shares of the Series C Stock. If such notice of redemption shall have
been duly mailed and if, on or before the date fixed for redemption designated
in such notice, the funds necessary for the redemption shall have been
provided by the corporation in accordance with the provisions of the following
sentence, then, notwithstanding that any certificate of shares of Series C
Stock so called for redemption shall not have been delivered for cancellation,
the shares represented thereby shall no longer be deemed outstanding on and
after the date such funds shall have been so provided, the dividends thereon
shall cease to accrue from and after the date of redemption so designated, and
all rights with respect to the shares of the Series C Stock so called for
redemption shall terminate forthwith after such redemption date, excepting
only the right of each holder to receive the redemption price thereof plus
unpaid dividends accrued to such redemption date but without interest thereon.
The corporation's obligation to provide funds for redemption shall be deemed
fulfilled if, on or before the redemption date, the corporation shall deposit
with a bank or trust company (which may be an affiliate of the corporation),
having a capital and surplus of at least $50,000,000, funds necessary for such
redemption, in trust, with irrevocable instructions that such funds be applied
to the redemption of the shares of Series C Stock so called for redemption.
Any interest accrued on such funds shall be paid to the corporation from time
to time. Any funds so deposited and unclaimed at the end of five years from
such redemption date shall be released or repaid to the corporation, after
which the holder or holders of shares of Series C Stock so called for
redemption shall look only to the corporation for payment of the redemption
price.
(c) Pro Rata Redemption. If any proposed redemption of shares of the Series C
Stock shall be less than all then outstanding shares of Series C Stock, such
redemption shall be made on a pro rata basis, as nearly as possible, among all
holders of shares of the Series C Stock outstanding at the time of redemption
in the same proportion that each such holder's then respective holding of such
shares shall bear to the aggregate number of such shares then outstanding.
45
(d) Dividend Arrearages. Notwithstanding the foregoing provisions of this
paragraph 6, if any dividends on shares of the Series C Stock are in arrears,
no other shares of the Preferred Stock shall be redeemed, and the corporation
shall not purchase or otherwise acquire any shares of the Preferred Stock,
unless all outstanding shares of the Series C Stock are simultaneously
redeemed, and the corporation shall not purchase or otherwise acquire any
shares of the Series C Stock; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of the Series C Stock pursuant
to a purchase or exchange offer made on the same terms to holders of all
outstanding shares of the Series C Stock.
7. VOTING RIGHTS.
(a) General. The holders of shares of Series C Stock shall not, by virtue
of their ownership thereof, be entitled to vote upon any matter except as
otherwise provided in the Articles of Organization or by law. Whenever the
holders of any shares of the Series C Stock shall be entitled to vote upon any
matter, each outstanding share of the Series C Stock entitled to vote on such
matter shall be entitled to one (1) vote.
(b) Two-Thirds Approval. So long as any shares of the Series C Stock are
outstanding, the corporation shall not, without first obtaining the consent,
given in writing or in person or by proxy or at a meeting called for the
purpose, of the holders of at least two-thirds (2/3rds) of the outstanding
shares of the Series C Stock:
(i) authorize or create any other class of capital stock (or series
thereof), the shares of which rank prior to shares of Preferred Stock in
respect of dividend payments or distributions or payments upon Liquidation;
or authorize, create or issue any bonds, notes, debentures, obligations,
stock or other securities by their terms convertible into or evidencing a
right to purchase shares of stock of any other class of capital stock (or
series thereof) the shares of which rank prior to the shares of Preferred
Stock in respect of dividend payments or distributions or payments upon
Liquidation;
46
(ii) authorize or create any other series of Preferred Stock, the shares of
which rank prior to shares of Series C Stock in respect of dividend payments
or distributions or payments upon Liquidation; or authorize, create or issue
any bonds, notes, debentures, obligations, stock or other securities by
their terms convertible into or evidencing a right to purchase shares of any
other series of Preferred Stock which rank prior to the shares of Series C
Stock in respect of dividend payments or distributions or payments upon
Liquidation;
(iii) reclassify any shares of any class of capital stock into a class
ranking prior to the Preferred Stock in respect of dividend payments or
distributions or payments upon Liquidation; reclassify any shares of
Preferred Stock into a series which ranks prior to Series C Stock in respect
of dividend payments or distributions or payments upon Liquidation; or
reclassify any shares of Junior Stock into Series C Stock; or
(iv) authorize any amendment to the Articles of Organization which would
adversely affect the rights of the holders of the Series C Stock. For the
purposes of this subclause (iv), the term "adversely affects" shall have the
same meaning as it has in Section 77 of Chapter 156B of the Massachusetts
General Laws, as in effect on February 10, 1984.
(c) Special Voting Rights. Notwithstanding the foregoing, in the event that,
at any time after the date of original issue of the shares of the Series C
Stock, an amount equal to the full accrued dividends for six (6) or more
quarterly dividend periods, whether or not consecutive, shall not have been
paid or declared and a sum sufficient for the payment thereof irrevocably set
aside in trust for the holders of all of such shares, the Board of Directors
of the corporation shall promptly take all necessary actions to increase the
authorized number of directors of the corporation by one (1) and the holders
of the shares of the Series C Stock then outstanding shall be entitled (by
series, voting as a single class) to elect one (1) person director to the
Board of Directors of the corporation (such right to elect one (1) director
being
47
hereinafter sometimes referred to as the "special voting rights"), each
outstanding share having such right being entitled for such purpose to one
vote; provided, however, that at such time as the arrearage in payment of
dividends which gave rise to the exercise of the special voting rights has
been cured with regard to the Series C Stock by waiver or payment of all
accrued dividends, the right of the holders of such shares so to vote as
provided in this paragraph 7(c) shall cease (subject to renewal from time to
time upon the same terms and conditions) and the term of office of the person
who is at that time a director elected by such holders shall terminate and the
number of directors of the corporation shall be automatically reduced by one
(1).
(d) Special Voting Rights; Procedure. At any time after the special voting
rights shall have become vested in the holders of the shares of the Series C
Stock as provided in paragraph 7(c), the Clerk of the corporation, as promptly
as possible but in any event within twenty (20) days after receipt of the
written request of the holders of 10% of the shares of the Series C Stock then
outstanding, addressed to the corporation at its principal office, shall call
a special meeting of the holders of the shares of the Series C Stock for the
purpose of electing such additional director, such meeting to be held at any
place as provided by the By-Laws of the corporation for meetings of the
corporation's stockholders, and upon not less than ten (10) nor more than
twenty (20) days notice. If such meeting shall not be so called within twenty
(20) days after receipt of the request by the Clerk of the corporation, then
the holders of 10% of the shares of the Series C Stock then outstanding may,
by written notice to the Clerk of the corporation, designate any person to
call such meeting, and the person so designated may call such meeting, at any
such place as provided above and upon not less than ten (10) nor more than
twenty (20) days notice and for that purpose shall have access to the
stockholder record books of the corporation. No such special meeting of the
holders of the shares of the Series C Stock and no adjournment thereof shall
be held on a date later than thirty (30) days before the annual meeting of
stockholders of the corporation. At any meeting so called or at any annual
meeting held at any time when the special voting rights are in effect, the
holders of a majority of the
48
shares of the Series C Stock then outstanding, present in person or by proxy,
shall be sufficient to constitute a quorum for the election of such additional
director, and such additional director, together with any and all other
directors who are then members of the Board of Directors, shall constitute the
duly elected directors of the corporation.
(e) Vacancy in Office of Director Elected by Holders of Series C Stock. With
respect to a vacancy arising in the directorship referred to in paragraph 7(c)
at any time when the special voting rights are in effect pursuant to paragraph
7(c), upon the written request of the holders of 10% of the shares of the
Series C Stock then outstanding, addressed to the corporation at its principal
office, the Clerk of the corporation shall give notice of a special meeting of
holders of the shares of the Series C Stock of the election of a director to
fill such vacancy caused by the death, resignation or other inability to serve
as a director elected by such holders, to be held not less than ten (10) nor
more than twenty (20) days following receipt by the Clerk of the corporation
of such written request. So long as special voting rights are in effect
pursuant to paragraph 7(c), any director who shall have been so elected by the
holders of the Series C Stock may be removed at any time, either with or
without cause, only by the affirmative vote of the holders of the shares at
the time entitled to cast a majority of the votes entitled to be cast for the
election of such director at a special meeting of such holders called for that
purpose, and any vacancy thereby created may be filled by the vote of such
holders.
8. STATUS OF REDEEMED SHARES OF SERIES C STOCK. All shares of the Series C
Stock which have been redeemed by the corporation pursuant to paragraph 6
shall have, after such redemption, the status of authorized but unissued
shares of Preferred Stock without designation of series and may be reissued
but not as shares of Series C Stock.
(F) Preferred Stock, Series D
1. DESIGNATION AND AMOUNT. The shares of such series shall be designated as
"Junior Participating Preferred Stock,
49
Series D" and the number of shares constituting such series shall be 200,000.
2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of any shares of
any series of preferred stock ranking prior and superior to the shares of
Junior Participating Preferred Stock, Series D with respect to dividends, the
holders of shares of Junior Participating Preferred Stock, Series D shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash
on the 15th day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Junior Participating Preferred
Stock, Series D, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $3.10 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share amount (payable in kind) of
all noncash dividends or other distributions other than a dividend payable in
shares of common stock, par value $2.25 per share, of the corporation (the
"Common Stock") or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock, since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of Junior Participating Preferred Stock, Series D. In
the event the corporation shall at any time after June 28, 1990 ( the "Rights
Declaration Date") (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each
such case the amount to which holders of shares of Junior Participating
Preferred Stock, Series D were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock
50
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The corporation shall declare a dividend or distribution on the Junior
Participating Preferred Stock, Series D as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $3.10 per share
on the Junior Participating Preferred Stock, Series D shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of
Junior Participating Preferred Stock, Series D from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Junior
Participating Preferred Stock, Series D, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Junior Participating Preferred Stock, Series D
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of
Junior Participating Preferred Stock, Series D in an amount less than the
total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Junior Participating Preferred Stock,
Series D entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be
51
no more than 30 days prior to the date fixed for the payment thereof.
3. VOTING RIGHTS. The holders of shares of Junior Participating Preferred
Stock, Series D shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Junior Participating Preferred Stock, Series D shall entitle the
holder thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of the corporation. In the event the corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the number of votes per share to which holders
of shares of Junior Participating Preferred Stock, Series D were entitled
immediately prior to such event shall be adjusted by multiplying such number
by a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein or by law, the holders of shares of
Junior Participating Preferred Stock, Series D and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a
vote of stockholders of the corporation.
(C)(i) If at any time dividends on any Junior Participating Preferred
Stock, Series D shall be in arrears in an amount equal to the full accrued
dividends for six (6) or more quarterly dividends periods, whether or not
consecutive, shall not have been paid or declared and a sum sufficient for the
payment thereof irrevocably set aside in trust for the holders of all of such
shares, the Board of Directors of the corporation shall promptly take all
necessary actions to increase the authorized number of directors of the
corporation by one (1) and the holders of the shares of the Junior
Participating Preferred Stock, Series D then outstanding shall be
52
entitled (by series, voting as a single class) to elect one (1) person
director to the Board of Directors of the corporation (such right to elect one
(1) director being hereinafter sometimes referred to as the "special voting
rights"), each outstanding share having such right being entitled for such
purpose to one vote; provided, however, that at such time as the arrearage in
payment of dividends which gave rise to the exercise of the special voting
rights has been cured with regard to the Junior Participating Preferred Stock,
Series D by waiver or payment of all accrued dividends, the right of the
holders of such shares so to vote as provided in this paragraph (C)(i) of this
Section 3 shall cease (subject to renewal from time to time upon the same
terms and conditions) and the term of office of the person who is at that time
a director elected by such holders shall terminate and the number of directors
of the corporation shall be automatically reduced by one (1).
(ii) At any time after the special voting rights shall have become vested in
the holders of the shares of the Junior Participating Preferred Stock, Series
D as provided in paragraph (C)(i) of this Section 3, the Clerk of the
corporation, as promptly as possible but in any event within twenty (20) days
after receipt of the written request of the holders of 10% of the shares of
the Junior Participating Preferred Stock, Series D then outstanding, addressed
to the corporation at its principal office, shall call a special meeting of
the holders of the shares of the Junior Participating Preferred Stock, Series
D for the purpose of electing such additional director, such meeting to be
held at any place as provided by the Bylaws of the corporation for meetings of
the corporation's stockholders, and upon not less then ten (10) nor more than
twenty (20) days notice. If such meeting shall not be so called within twenty
(20) days after receipt of the request by the Clerk of the corporation, then
the holders of 10% of the shares of the Junior Participating Preferred Stock,
Series D then outstanding may, by written notice to the Clerk of the
corporation, designate any person to call such meeting, and the person so
designated may call such meeting, at any such place as provided above and upon
not less then ten (10) nor more than twenty (20) days notice and for that
purpose shall have access to the stockholder record books of the corporation.
No such special meeting
53
of the holders of the shares of the Junior Participating Preferred Stock,
Series D and no adjournment thereof shall be held on a date later than thirty
(30) days before the annual meeting of stockholders of the corporation. At any
meeting so called or at any annual meeting held at any time when the special
voting rights are in effect, the holders of a majority of the shares of the
Junior Participating Preferred Stock, Series D then outstanding, present in
person or by proxy, shall be sufficient to constitute a quorum for the
election of such additional director, and such additional director, together
with any and all other directors who are then members of the Board of
Directors, shall constitute the duly elected directors of the corporation.
(C)(iii) With respect to a vacancy arising in the directorship referred to
in paragraph (C)(i) of this Section 3 at any time when the special voting
rights are in effect pursuant to paragraph (C)(i) of this Section 3, upon the
written request of the holders of 10% of the shares of the Junior
Participating Preferred Stock, Series D then outstanding, addressed to the
corporation at its principal office, the Clerk of the corporation shall give
notice of a special meeting of holders of the shares of the Junior
Participating Preferred Stock, Series D of the election of a director to fill
such vacancy caused by death, resignation or other inability to serve as a
director elected by such holders, to be held not less than ten (10) nor more
than twenty (20) days following receipt by the Clerk of the corporation of
such written request. So long as special voting rights are in effect pursuant
to paragraph (i) of this Section 3(c), any director who shall have been so
elected by the holders of the Junior Participating Preferred Stock, Series D
may be removed at any time, either with or without cause, only by the
affirmative vote of the holders of the shares at the time entitled to cast a
majority of the votes entitled to be cast for the election of such director at
a special meeting of such holders called for that purpose, and any vacancy
thereby created may be filled by the vote of such holders.
(D) Except as set forth herein, holders of Junior Participating Preferred
Stock, Series D shall have no special voting rights and their consent shall
not be
54
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions payable
on the Junior Participating Preferred Stock, Series D as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Junior Participating
Preferred Stock, Series D outstanding shall have been paid in full, the
corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Junior Participating Preferred Stock,
Series D;
(ii) declare or pay dividends on or make any other distributions on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Participating
Preferred Stock, Series D, except dividends paid ratably on the Junior
Participating Preferred Stock, Series D and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Junior Participating Preferred Stock,
Series D, provided that the corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of
any stock of the corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Junior Participating
Preferred Stock, Series D;
55
(iv) purchase or otherwise acquire for consideration any shares of Junior
Participating Preferred Stock, Series D, or any shares of stock ranking on a
parity with the Junior Participating Preferred Stock, Series D, except
pursuant to Section 8 or in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to all holders
of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the
respective series or classes.
The corporation shall not permit any subsidiary of the corporation to purchase
or otherwise acquire for consideration any shares of stock of the corporation
unless the corporation could, under paragraph (A) of this Section 4, purchase
or otherwise acquire such shares at such time and in such manner.
5. REACQUIRED SHARES. Any shares of Junior Participating Preferred Stock,
Series D purchased or otherwise acquired by the corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation (voluntary or otherwise), dissolution or winding up
of the corporation, no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Junior Participating Preferred Stock, Series D unless,
prior thereto, the holders of shares of Junior Participating Preferred Stock,
Series D shall have received $1,000.00 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series D
56
Liquidation Preference"). Following the payment of the full amount of the
Series D Liquidation Preference, no additional distributions shall be made to
the holders of shares of Junior Participating Preferred Stock, Series D
unless, prior thereto, the holders of shares of Common Stock shall have
received an amount per share (the "Common Adjustment") equal to the quotient
obtained by dividing (i) the Series D Liquidation Preference by (ii) 1,000 (as
appropriately adjusted as set forth in subparagraph (C) below to reflect such
events as stock splits, stock dividends and recapitalizations with respect to
the Common Stock) (such number in clause (ii) immediately above being referred
to as the "Adjustment Number"). Following the payment of the full amount of
the Series D Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Junior Participating Preferred Stock, Series D and
Common Stock, respectively, holders of Junior Participating Preferred Stock,
Series D and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to one (1) with respect to such Junior Participating
Preferred Stock, Series D and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient assets available to
permit payment in full of the Series D Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Junior Participating Preferred Stock, Series D, then
such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences. In
the event, however, that there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(C) In the event the corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each
such case the Adjustment Number in effect immediately prior to such event
shall be adjusted
57
by multiplying such Adjustment Number by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
7. CONSOLIDATION, MERGER, ETC. In case the corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
or any other property, then in any such case the shares of Junior Participating
Preferred Stock, Series D shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1000 times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is changed or exchanged. In
the event the corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Junior Participating Preferred Stock, Series D shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
8. REDEMPTION. The outstanding shares of Junior Participating Preferred
Stock, Series D may be redeemed at the option of the Board of Directors as a
whole, but not in part, at any time, or from time to time, at a cash price per
share equal to 100 percent of (i) the product of the Adjustment Number times the
Average Market Value (as such term is hereinafter defined) of the Common Stock,
plus (ii) all dividends which on the redemption date have accrued on the shares
to be redeemed and have not been paid, or declared and a sum sufficient for the
payment thereof set apart, without interest. The "Average Market Value" is the
average of the closing sale prices of the Common Stock
58
during the 30 day period immediately preceding the date before the redemption
date on the Composite Tape for New York Stock Exchange Listed Stocks, or, if
such stock is not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of 1934, as
amended, on which such stock is listed, or, if such stock is not listed on any
such exchange, the average of the closing sale prices with respect to a share of
Common Stock during such 30 day period, as quoted on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then in use,
or if no such quotations are available, the fair market value of the Common
Stock as determined by the Board of Directors in good faith.
9. RANKING. The Junior Participating Preferred Stock, Series D shall rank
junior to all other series of the corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
10. AMENDMENT. At such time as shares of Junior Participating Preferred Stock,
Series D are outstanding, the Articles of Organization of the corporation shall
not be further amended in any manner which would materially alter or change the
powers, preferences or special rights of the Junior Participating Preferred
Stock, Series D so as to affect them adversely without the affirmative vote of
the holders of two-thirds or more of the outstanding shares of Junior
Participating Preferred Stock, Series D, voting separately as a class.
11. FRACTIONAL SHARES. Junior Participating Preferred Stock, Series D may be
issued in fractions of a share which shall entitle the holder, in proportion to
such holders fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Junior Participating Preferred Stock, Series D.
12. CANCELLATION. Any shares of the Junior Participating Preferred Stock,
Series D redeemed, exchanged, or purchased or otherwise acquired by the
corporation in any manner whatsoever shall be retired and canceled promptly
after the
59
acquisition thereof; all such shares shall upon their cancellation become
authorized but unissued shares of preferred stock.
(G) Preferred Stock, Series E
1. DEFINITIONS OF CERTAIN EXPRESSIONS USED IN THIS PARAGRAPH. As used in this
Article 4, the following capitalized words and expressions have the respective
meanings set out below:
"Articles of Organization" means the Articles of Organization of the
corporation as amended and in effect from time to time, including the amendment
thereof effected pursuant to this paragraph.
"Common Stock" means the capital stock of the corporation so designated
and authorized from time to time and being stock which is junior to all series
of the Preferred Stock in respect of dividend payments and of distribution or
payments upon Liquidation.
"corporation" means Bank of Boston Corporation and includes any successor
corporation by merger, consolidation or otherwise if the stockholders of the
former continue as stockholders of the continuing or combined corporation.
"Junior Dividend Stock" means (i) the Common Stock, (ii) any series of the
Preferred Stock which is specifically made junior to the Series E Stock,
including the corporation's Junior Participating Preferred Stock, Series D and
(iii) any class of capital stock of the corporation which is specifically made
junior to the Preferred Stock, in respect of payments of dividends.
"Junior Liquidation Stock" means (i) the Common Stock, (ii) any series of
the Preferred Stock which is specifically made junior to the Series E Stock,
including the corporation's Junior Participating Preferred Stock, Series D and
(iii) any class of capital stock of the corporation which is specifically made
junior to the Preferred Stock, in respect of distributions or payments upon
Liquidation.
"Junior Stock" means the Common Stock, the Junior Dividend Stock and the
Junior Liquidation Stock.
60
"Liquidation" means the voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding up of the corporation, but shall not
include (i) the merger or consolidation of the corporation with another
corporation pursuant to any statute which provides in effect that the
stockholders of the former shall continue as stockholders of the continuing or
combined corporation and (ii) the acquisition by the corporation of assets or
stock of another corporation.
"Preferred Stock" means the authorized class of the capital stock of the
corporation so designated of which there are currently 10,000,000 shares
authorized.
"Series E Stock" means the series of Preferred Stock created by this
paragraph.
2. NUMBER OF SHARES AND DESIGNATION. 920,000 shares of Preferred Stock are
hereby constituted as a series of Preferred Stock, liquidation preference $250
per share, and designated as 8.60% Cumulative Preferred Stock, Series E. No
additional shares of Preferred Stock may be issued as Series E Stock.
3. PREFERENCES. The preferences of each share of the Series E Stock with
respect to dividend payments or to distributions or payments upon Liquidation
will be in every respect on a parity with the preferences of every other share
of Preferred Stock and of every other class of the capital stock of the
corporation (other than Common Stock), from time to time outstanding, which
other shares of the Preferred Stock and which other classes of capital stock are
not made senior or junior to the Series E Stock as to dividend payments or to
distributions or payments upon Liquidation.
4. LIQUIDATION. Upon Liquidation, the holders of the then outstanding Series
E Stock shall be entitled, before any distribution or payment is made upon any
of the Junior Liquidation Stock, to be paid in cash an amount equal to $250 per
share of Series E Stock so held by them plus all accrued and unpaid dividends
thereon (whether or not earned or declared) to the date fixed for such payment.
If upon Liquidation, the amounts payable with respect to shares of
61
Series E Stock and to any other shares of the capital stock of the corporation
ranking as to any such distribution on a parity with the Series E Stock are not
paid in full, the holders of shares of the Series E Stock and of such other
shares shall share ratably in any such distribution of assets of the corporation
in proportion to the full respective preferential amounts to which they are
entitled.
Notice of Liquidation, stating the date when and the place where the amount
payable on Liquidation will be paid, shall be sent by the Clerk of the
corporation by first class mail, postage prepaid, at least thirty (30) but no
more than sixty (60) days prior to the date fixed for such liquidation payment,
to the holders of the shares of the Series E Stock, at their respective
addresses appearing on the books of the corporation. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice, and failure duly to give
such notice by mail to any holder of shares of Series E Stock, or any defect in
such notice, shall not affect the validity of the proceedings for the making of
liquidation payments on any other shares of the Series E Stock or of any other
series or class of the capital stock of the corporation. If such notice shall
have been duly mailed and if, on or before the date fixed for liquidation
payments designated in such notice, the funds necessary for such liquidation
payments shall have been provided by the corporation in accordance with the
provisions of the following sentence, then, notwithstanding that any certificate
of shares of Series E Stock shall not have been delivered for cancellation, the
shares represented thereby shall no longer be deemed outstanding on and after
the date such funds shall have been so provided, the dividends thereon shall
cease to accrue from and after the date fixed for such liquidation payments so
designated, and all rights with respect to the shares of the Series E Stock
shall terminate forthwith after such liquidation payment date, excepting only
the right of the holder to receive the liquidation price thereof of $250 per
share plus unpaid dividends accrued to such liquidation payment date but without
interest thereon. The corporation's obligation to provide funds for liquidation
payments shall be deemed fulfilled if, on or before the liquidation payment
date, the corporation shall deposit with a bank or trust company (which may be
an affiliate of the corporation), having a
62
capital and surplus of at least $50,000,000, funds necessary for such
liquidation payments, in trust, with irrevocable instructions that such funds be
applied to such liquidation payments. Any interest accrued on such funds shall
be paid to the corporation from time to time. Any funds so deposited and
unclaimed at the end of five years from such liquidation payment date shall be
released or repaid to the corporation, after which the holder or holders of
shares of Series E Stock shall look only to the corporation for payment of
liquidation payments.
5. DIVIDENDS.
(a) Dividend Rate. Dividends on each share of the Series E Stock shall be
payable quarterly based on an annual rate of 8.60% multiplied by $250.
Dividends payable on the Series E Stock for any period less than a full dividend
period shall be computed on the basis of a 360-day year consisting of twelve 30-
day months.
(b) Payment of Dividends. Dividends on each share of the Series E Stock
shall be fully cumulative and shall accrue whether or not earned, without
interest, from the date of issuance of each share, and shall be payable in
arrears on the 15th day of March, June, September and December in each year,
commencing on December 15, 1992, in which such shares are outstanding out of
funds legally available for the payment of dividends, when, as and if declared
by the Board of Directors.
In the event that there shall be outstanding shares of any other series of
the Preferred Stock or of any other class of the capital stock of the
corporation ranking on a parity as to dividends with shares of the Series E
Stock, the corporation, in making any dividend payment on account of arrears on
shares of the Series E Stock or such other series of the Preferred Stock or such
other class of capital stock, shall make payment ratably upon all outstanding
shares of the Series E Stock, such other series of the Preferred Stock and such
other class of capital stock in proportion to the respective amounts of
dividends in arrears upon all such outstanding shares of the Series E Stock,
such other series of the Preferred Stock and such other class of capital stock
to the date of such dividend payment.
63
So long as any shares of the Series E Stock are outstanding, the
corporation shall not (i) declare or pay or set apart for payment any dividend
or other distribution (other than dividends or distributions payable in shares
of Junior Stock) for any period upon any Junior Stock or any stock of the
corporation ranking on a parity with the Series E Stock as to dividends or upon
Liquidation or (ii) redeem, purchase or otherwise acquire for any consideration
any shares of Junior Stock or any capital stock of the corporation ranking on a
parity with the Series E Stock as to dividends or upon Liquidation, unless, in
either case, all dividends payable to holders of shares of the Series E Stock
and of any stock of the corporation ranking on a parity therewith as to
dividends for its current dividend period and all past dividend periods have
been paid (or are contemporaneously being paid), or a sum sufficient for the
payment thereof has been irrevocably set aside in trust for the holders of all
such shares; except that, notwithstanding clause (i) of this paragraph 5(b), the
corporation may pay dividends on the shares of the Series E Stock and shares of
stock of the corporation ranking on a parity therewith as to dividends ratably
in accordance with the sums which would be payable on such shares if all
dividends, including accumulations, if any, were declared and paid in full.
6. REDEMPTION.
(a) Redemption Price. Shares of the Series E Stock shall not be
redeemable prior to September 15, 1997. On and after such date, and in
accordance with this paragraph 6, the shares of the Series E Stock shall be
redeemable at any time or from time to time, in whole or in part, at the option
of the corporation by vote of its Board of Directors, with the prior approval of
the Board of Governors of the Federal Reserve System (if such approval is
required at the time of redemption). The redemption price shall be $250 per
share plus an amount equal to all unpaid dividends, whether or not earned or
declared, accrued to the date fixed for redemption.
(b) Redemption Procedure. Notice of any proposed redemption of all or any
of the shares of the Series E Stock under this paragraph 6 shall be sent by the
Clerk of the corporation by first class mail, postage prepaid, at least thirty
(30) but not more than sixty (60) days prior to the
64
date fixed for such redemption, to the holders of the shares of the Series E
Stock to be redeemed, at their respective addresses appearing on the books of
the corporation. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the holder
receives such notice, and failure duly to give such notice by mail to any holder
of shares of Series E Stock designated for redemption, or any defect in such
notice, shall not affect the validity of the proceedings for the redemption of
any other shares of the Series E Stock. If such notice of redemption shall have
been duly mailed and if, on or before the date fixed for redemption designated
in such notice, the funds necessary for the redemption shall have been provided
by the corporation in accordance with the provisions of the following sentence,
then, notwithstanding that any certificate of shares of Series E Stock so called
for redemption shall not have been delivered for cancellation, the shares
represented thereby shall no longer be deemed outstanding on and after the date
such funds shall have been so provided, the dividends thereon shall cease to
accrue from and after the date of redemption so designated, and all rights with
respect to the shares of the Series E Stock so called for redemption shall
terminate forthwith after such redemption date, excepting only the right of each
holder to receive the redemption price thereof plus unpaid dividends accrued to
such redemption date but without interest thereon. The corporation's obligation
to provide funds for redemption shall be deemed fulfilled if, on or before the
redemption date, the corporation shall deposit with a bank or trust company
(which may be an affiliate of the corporation), having a capital and surplus of
at least $50,000,000, funds necessary for such redemption, in trust, with
irrevocable instructions that such funds be applied to the redemption of the
shares of Series E Stock so called for redemption. Any interest accrued on such
funds shall be paid to the corporation from time to time. Any funds so deposited
and unclaimed at the end of five years from such redemption date shall be
released or repaid to the corporation, after which the holder or holders of
shares of Series E Stock so called for redemption shall look only to the
corporation for payment of the redemption price.
(c) Pro Rata Redemption. If any proposed redemption of shares of the
Series E Stock shall be less than all then outstanding shares of Series E Stock,
such redemption shall
65
be made on a pro rata basis, as nearly as possible, among all holders of shares
of the Series E Stock outstanding at the time of redemption in the same
proportion that each such holder's then respective holding of such shares shall
bear to the aggregate number of such shares then outstanding.
(d) Dividend Arrearages. Notwithstanding the foregoing provisions of this
paragraph 6, if any dividends on shares of the Series E Stock are in arrears, no
other shares of the Preferred Stock shall be redeemed, and the corporation shall
not purchase or otherwise acquire any shares of the Preferred Stock, unless all
outstanding shares of the Series E Stock are simultaneously redeemed in
accordance with the foregoing provisions of this paragraph 6, and the
corporation shall not purchase or otherwise acquire any shares of the Series E
Stock; provided, however, that the foregoing shall not prevent the purchase or
acquisition of shares of the Series E Stock pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding shares of the Series
E Stock.
7. VOTING RIGHTS.
(a) General. The holders of shares of Series E Stock shall not, by virtue
of their ownership thereof, be entitled to vote upon any matter except as
otherwise provided in the Articles of Organization or by law. Whenever the
holders of any shares of the Series E Stock shall be entitled to vote upon any
matter, each outstanding share of the Series E Stock entitled to vote on such
matter shall be entitled to one (1) vote.
(b) Two-Thirds Approval. So long as any shares of the Series E Stock are
outstanding, the corporation shall not, without first obtaining the consent,
given in writing or in person or by proxy or at a meeting called for the
purpose, of the holders of at least two-thirds (2/3rds) of the outstanding
shares of the Series E Stock:
(i) authorize or create any other class of capital stock (or series
thereof), the shares of which rank prior to shares of Preferred Stock in
respect of dividend payments or distributions or payments upon
Liquidation; or authorize, create or issue any bonds, notes, debentures,
obligations, stock or
66
other securities by their terms convertible into or evidencing a right
to purchase shares of stock of any other class of capital stock (or
series thereof) the shares of which rank prior to the shares of
Preferred Stock in respect of dividend payments or distributions or
payments upon Liquidation;
(ii) authorize or create any other series of Preferred Stock, the shares
of which rank prior to shares of Series E Stock in respect of dividend
payments or distributions or payments upon Liquidation; or authorize,
create or issue any bonds, notes, debentures, obligations, stock or
other securities by their terms convertible into or evidencing a right
to purchase shares of any other series of Preferred Stock which rank
prior to the shares of Series E Stock in respect of dividend payments or
distributions or payments upon Liquidation ;
(iii) reclassify any shares of any class of capital stock into a class
ranking prior to the Preferred Stock in respect of dividend payments or
distributions or payments upon Liquidation; reclassify any shares of
Preferred Stock into a series which ranks prior to Series E Stock in
respect of dividend payments or distributions or payments upon
Liquidation; or reclassify any shares of Junior Stock into Series E
Stock; or
(iv) authorize any amendment to the Articles of Organization which
would adversely affect the rights of the holders of the Series E Stock.
For the purposes of this subparagraph (iv), the term "adversely affects"
shall have the same meaning as it has in Section 77 of Chapter 156B of
the Massachusetts General Laws, as in effect on August 6, 1992.
(c) Special Voting Rights. Notwithstanding the foregoing, in the event
that, at any time after the date of original issue of the shares of the Series E
Stock, an amount equal to the full accrued dividends for six (6) or more
quarterly dividend periods, whether or not consecutive,
67
shall not have been paid or declared and a sum sufficient for the payment
thereof irrevocably set aside in trust for the holders of all of such shares,
the Board of Directors of the corporation shall promptly take all necessary
actions to increase the authorized number of directors of the corporation by one
(1), and the holders of the shares of the Series E Stock then outstanding shall
be entitled (by series, voting as a single class) to elect one (1) person
director to the Board of Directors of the corporation (such right to elect one
(1) director being hereinafter sometimes referred to as the "special voting
rights"), each outstanding share having such right being entitled for such
purpose to one vote; provided, however, that at such time as the arrearage in
payment of dividends which gave rise to the exercise of the special voting
rights has been cured with regard to the Series E Stock by waiver or payment of
all accrued dividends, the right of the holders of such shares so to vote as
provided in this paragraph 7(c) shall cease (subject to renewal from time to
time upon the same terms and conditions), and the term of office of the person
who is at that time a director elected by such holders shall terminate and the
number of directors of the corporation shall be automatically reduced by one
(1).
(d) Special Voting Rights; Procedure. At any time after the special voting
rights shall have become vested in the holders of the shares of the Series E
Stock as provided in paragraph 7(c), the Clerk of the corporation, as promptly
as possible but in any event within twenty (20) days after receipt of the
written request of the holders of 10% of the shares of the Series E Stock then
outstanding, addressed to the corporation at its principal office, shall call a
special meeting of the holders of the shares of the Series E Stock for the
purpose of electing such additional director, such meeting to be held at any
place as provided by the By-Laws of the corporation for meetings of the
corporation's stockholders, and upon not less than ten (10) nor more than twenty
(20) days notice. If such meeting shall not be so called within twenty (20)
days after receipt of the request by the Clerk of the corporation, then the
holders of 10% of the shares of the Series E Stock then outstanding may, by
written notice to the Clerk of the corporation, designate any person to call
such meeting, and the person so designated may call such meeting, at any such
place as provided above and upon not less than ten (10) nor more than
68
twenty (20) days notice and for that purpose shall have access to the
stockholder record books of the corporation. No such special meeting of the
holders of the shares of the Series E Stock and no adjournment thereof shall be
held on a date later than thirty (30) days before the annual meeting of
stockholders of the corporation. At any meeting so called or at any annual
meeting held at any time when the special voting rights are in effect, the
holders of a majority of the shares of the Series E Stock then outstanding,
present in person or by proxy, shall be sufficient to constitute a quorum for
the election of such additional director, and such additional director, together
with any and all other directors who are then members of the Board of Directors,
shall constitute the duly elected directors of the corporation.
(e) Vacancy in Office of Director Elected by Holders of Series E Stock.
With respect to a vacancy arising in the directorship referred to in paragraph
7(c) at any time when the special voting rights are in effect pursuant to
paragraph 7(c), upon the written request of the holders of 10% of the shares of
the Series E Stock then outstanding, addressed to the corporation at its
principal office, the Clerk of the corporation shall give notice of a special
meeting of holders of the shares of the Series E Stock of the election of a
director to fill such vacancy caused by the death, resignation or other
inability to serve as a director elected by such holders, to be held not less
than ten (10) nor more than twenty (20) days following receipt by the Clerk of
the corporation of such written request. So long as special voting rights are in
effect pursuant to paragraph 7(c), any director who shall have been so elected
by the holders of the Series E Stock may be removed at any time, either with or
without cause, only by the affirmative vote of the holders of the shares at the
time entitled to cast a majority of the votes entitled to be cast for the
election of such director at a special meeting of such holders called for that
purpose, and any vacancy thereby created may be filled by the vote of such
holders.
8. STATUS OF REDEEMED SHARES OF SERIES E STOCK. All shares of the Series E
Stock which have been redeemed by the corporation pursuant to paragraph 6 shall
have, after such redemption, the status of authorized but unissued shares of
69
Preferred Stock without designation of series and may be reissued but not as
shares of Series E Stock.
(H) Preferred Stock, Series F
1. DEFINITIONS OF CERTAIN EXPRESSIONS USED IN THIS PARAGRAPH. As used in this
Section 4, the following capitalized words and expressions have the respective
meanings set out below:
"Articles of Organization" mean the Articles of Organization of the
corporation as amended and in effect from time to time, including the
amendment thereof effected pursuant to this paragraph.
"Common Stock" means the capital stock of the corporation so designated and
authorized from time to time and being stock which is junior to all series of
the Preferred Stock in respect of dividend payments and of distributions or
payments upon Liquidation.
"corporation" means Bank of Boston Corporation and includes any successor
corporation by merger, consolidation or otherwise if the stockholders of the
former continue as stockholders of the continuing or combined corporation.
"Junior Dividend Stock" means (i) the Common Stock, (ii) any series of the
Preferred Stock which is specifically made junior to the Series F Stock,
including the corporation's Junior Participating Preferred Stock, Series D and
(iii) any class of capital stock of the corporation which is specifically made
junior to the Preferred Stock, in respect of payments of dividends.
"Junior Liquidation Stock" means (i) the Common Stock, (ii) any series of the
Preferred Stock which is specifically made junior to the Series F Stock,
including the corporation's Junior Participating Preferred Stock, Series D and
(iii) any class of capital stock of the corporation which is specifically made
junior to the Preferred Stock, in respect of distributions or payments upon
Liquidation.
70
"Junior Stock" means the Common Stock, the Junior Dividend Stock and the
Junior Liquidation Stock.
"Liquidation" means the voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding up of the corporation, but shall not
include (i) the merger or consolidation of the corporation with another
corporation pursuant to any statute which provides in effect that the
stockholders of the former shall continue as stockholders of the continuing or
combined corporation and (ii) the acquisition by the corporation of assets or
stock of another corporation.
"Preferred Stock" means the authorized class of the capital stock of the
corporation so designated of which there are currently 10,000,000 shares
authorized.
"Series F Stock" means the series of Preferred Stock created by this
paragraph.
2. NUMBER OF SHARES AND DESIGNATION. 280,000 shares of Preferred Stock are
hereby constituted as a series of Preferred Stock, liquidation preference $250
per share, and designated as 7 7/8% Cumulative Preferred Stock, Series F. No
additional shares of Preferred Stock may be issued as Series F Stock.
3. PREFERENCES. The preferences of each share of the Series F Stock with
respect to dividend payments or to distributions or payments upon Liquidation
will be in every respect on a parity with the preferences of every other share
of Preferred Stock and of every other class of the capital stock of the
corporation (other than Common Stock), from time to time outstanding, which
other shares of the Preferred Stock and which other classes of capital stock are
not made senior or junior to the Series F Stock as to dividend payments or to
distributions or payments upon Liquidation.
4. LIQUIDATION. Upon Liquidation, the holders of the then outstanding Series F
Stock shall be entitled, before any distribution or payment is made upon any of
the Junior Liquidation Stock, to be paid in cash an amount equal to $250 per
share of Series F Stock so held by them plus all accrued and unpaid dividends
thereon (whether or not earned
71
or declared) to the date fixed for such payment. If upon Liquidation, the
amounts payable with respect to shares of Series F Stock and to any other shares
of the capital stock of the corporation ranking as to any such distribution on a
parity with the Series F Stock are not paid in full, the holders of shares of
the Series F Stock and of such other shares shall share ratably in any such
distribution of assets of the corporation in proportion to the full respective
preferential amounts to which they are entitled.
Notice of Liquidation, stating the date when and the place where the amount
payable on Liquidation will be paid, shall be sent by the Clerk of the
corporation by first class mail, postage prepaid, at least thirty (30) but no
more than sixty (60) days prior to the date fixed for such liquidation payment,
to the holders of the shares of the Series F Stock, at their respective
addresses appearing on the books of the corporation. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice, and failure duly to give
such notice by mail to any holder of shares of Series F Stock, or any defect in
such notice, shall not affect the validity of the proceedings for the making of
liquidation payments on any other shares of the Series F Stock or of any other
series or class of the capital stock of the corporation. If such notice shall
have been duly mailed and if, on or before the date fixed for liquidation
payments designated in such notice, the funds necessary for such liquidation
payments shall have been provided by the corporation in accordance with the
provisions of the following sentence, then, notwithstanding that any certificate
of shares of Series F Stock shall not have been delivered for cancellation, the
shares represented thereby shall no longer be deemed outstanding on and after
the date such funds shall have been so provided, the dividends thereon shall
cease to accrue from and after the date fixed for such liquidation payments so
designated, and all rights with respect to the shares of the Series F Stock
shall terminate forthwith after such liquidation payment date, excepting only
the right of the holder to receive the liquidation price thereof of $250 per
share plus unpaid dividends accrued to such liquidation payment date but without
interest thereon. The corporation's obligation to provide funds for liquidation
payments shall be deemed fulfilled if, on or before the liquidation payment
date, the
72
corporation shall deposit with a bank or trust company (which may be an
affiliate of the corporation), having a capital and surplus of at least
$50,000,000, funds necessary for such liquidation payments, in trust, with
irrevocable instructions that such funds be applied to such liquidation
payments.
Any interest accrued on such funds shall be paid to the corporation from
time to time. Any funds so deposited and unclaimed at the end of five years from
such liquidation payment date shall be released or repaid to the corporation,
after which the holder or holders of shares of Series F Stock shall look only to
the corporation for payment of liquidation payments.
5. DIVIDENDS.
(a) Dividend Rate. Dividends on each share of the Series F Stock shall be
payable quarterly based on an annual rate of 7 7/8% multiplied by $250.
Dividends payable on the Series F Stock shall be computed (i) for any period
other than a full dividend period, on the basis of a 360-day year consisting
of twelve 30-day months and (ii) for each full dividend period, by dividing
the annual dividend rate by four.
(b) Payment of Dividends. Dividends on each share of the Series F Stock
shall be fully cumulative and shall accrue whether or not earned, without
interest, from the date of issuance of each share, and shall be payable in
arrears on the 15th day of March, June, September and December in each year,
commencing on September 15, 1993, in which such shares are outstanding out of
funds legally available for the payment of dividends, when, as and if declared
by the Board of Directors.
In the event that there shall be outstanding shares of any other series of the
Preferred Stock or of any other class of the capital stock of the corporation
ranking on a parity as to dividends with shares of the Series F Stock, the
corporation, in making any dividend payment on account of arrears on shares of
the Series F Stock or such other series of the Preferred Stock or such other
class of capital stock, shall make payment ratably upon all outstanding shares
of the Series F Stock, such other
73
series of the Preferred Stock and such other class of capital stock in
proportion to the respective amounts of dividends in arrears upon all such
outstanding shares of the Series F Stock, such other series of the Preferred
Stock and such other class of capital stock to the date of such dividend
payment.
So long as any shares of the Series F Stock are outstanding, the corporation
shall not (i) declare or pay or set apart for payment any dividend or other
distribution (other than dividends or distributions payable in shares of
Junior Stock) for any period upon any Junior Stock or any stock of the
corporation ranking on a parity with the Series F Stock as to dividends or
upon Liquidation or (ii) redeem, purchase or otherwise acquire for any
consideration any shares of Junior Stock or any capital stock of the
corporation ranking on a parity with the Series F Stock as to dividends or
upon Liquidation, unless, in either case, all dividends payable to holders of
shares of the Series F Stock and of any stock of the corporation ranking on a
parity therewith as to dividends for its current dividend period and all past
dividend periods have been paid (or are contemporaneously being paid), or a
sum sufficient for the payment thereof has been irrevocably set aside in trust
for the holders of all such shares; except that, notwithstanding clause (i) of
this paragraph 5(b), the corporation may pay dividends on the shares of the
Series F Stock and shares of stock of the corporation ranking on a parity
therewith as to dividends ratably in accordance with the sums which would be
payable on such shares if all dividends, including accumulations, if any, were
declared and paid in full.
6. REDEMPTION.
(a) Redemption Price. Shares of the Series F Stock shall not be redeemable
prior to July 15, 1998. On and after such date, and in accordance with this
paragraph 6, the shares of the Series F Stock shall be redeemable at any time
or from time to time, in whole or in part, at the option of the corporation by
vote of its Board of Directors, with the prior approval of the Board of
Governors of the Federal Reserve System (if such approval is required at the
time of redemption). The redemption price shall be $250 per share plus an
amount equal to all
74
unpaid dividends, whether or not earned or declared, accrued to the date
fixed for redemption.
(b) Redemption Procedure. Notice of any proposed redemption of all or any of
the shares of the Series F Stock under this paragraph 6 shall be sent by the
Clerk of the corporation by first class mail, postage prepaid, at least thirty
(30) but not more than sixty (60) days prior to the date fixed for such
redemption, to the holders of the shares of the Series F Stock to be redeemed,
at their respective addresses appearing on the books of the corporation. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice, and failure duly to give such notice by mail to any holder of shares
of Series F Stock designated for redemption, or any defect in such notice,
shall not affect the validity of the proceedings for the redemption of any
other shares of the Series F Stock. If such notice of redemption shall have
been duly mailed and if, on or before the date fixed for redemption designated
in such notice, the funds necessary for the redemption shall have been
provided by the corporation in accordance with the provisions of the following
sentence, then, notwithstanding that any certificate of shares of Series F
Stock so called for redemption shall not have been delivered for cancellation,
the shares represented thereby shall no longer be deemed outstanding on and
after the date such funds shall have been so provided, the dividends thereon
shall cease to accrue from and after the date of redemption so designated, and
all rights with respect to the shares of the Series F Stock so called for
redemption shall terminate forthwith after such redemption date, excepting
only the right of each holder to receive the redemption price thereof plus
unpaid dividends accrued to such redemption date but without interest thereon.
The corporation's obligation to provide funds for redemption shall be deemed
fulfilled if, on or before the redemption date, the corporation shall deposit
with a bank or trust company (which may be an affiliate of the corporation),
having a capital and surplus of at least $50,000,000, funds necessary for such
redemption, in trust, with irrevocable instructions that such funds be applied
to the redemption of the shares of Series F Stock so called for
75
redemption. Any interest accrued on such funds shall be paid to the
corporation from time to time.
Any funds so deposited and unclaimed at the end of five years from such
redemption date shall be released or repaid to the corporation, after which
the holder or holders of shares of Series F Stock so called for redemption
shall look only to the corporation for payment of the redemption price.
(c) Pro Rata Redemption. If any proposed redemption of shares of the Series F
Stock shall be less than all then outstanding shares of Series F Stock, such
redemption shall be made on a pro rata basis, as nearly as possible, among all
holders of shares of the Series F Stock outstanding at the time of redemption
in the same proportion that each such holder's then respective holding of such
shares shall bear to the aggregate number of such shares then outstanding.
(d) Dividend Arrearages. Notwithstanding the foregoing provisions of this
paragraph 6, if any dividends on shares of the Series F Stock are in arrears,
no other shares of the Preferred Stock shall be redeemed, and the corporation
shall not purchase or otherwise acquire any shares of the Preferred Stock,
unless all outstanding shares of the Series F Stock are simultaneously
redeemed in accordance with the foregoing provisions of this paragraph 6, and
the corporation shall not purchase or otherwise acquire any shares of the
Series F Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of the Series F Stock pursuant to a purchase
or exchange offer made on the same terms to holders of all outstanding shares
of the Series F Stock.
7. VOTING RIGHTS.
(a) General. The holders of shares of Series F Stock shall not, by virtue of
their ownership thereof, be entitled to vote upon any matter except as
otherwise provided in the Articles of Organization or by law. Whenever the
holders of any shares of the Series F Stock shall be entitled to vote upon any
matter, each outstanding share of the Series F Stock entitled to vote on such
matter shall be entitled to one (1) vote.
76
(b) Two-Thirds Approval. So long as any shares of the Series F Stock are
outstanding, the corporation shall not, without first obtaining the consent,
given in writing or in person or by proxy or at a meeting called for the
purpose, of the holders of at least two-thirds (2/3rds) of the outstanding
shares of the Series F Stock:
(i) authorize or create any other class of capital stock (or series
thereof), the shares of which rank prior to shares of Preferred Stock in
respect of dividend payments or distributions or payments upon Liquidation;
or authorize, create or issue any bonds, notes, debentures, obligations,
stock or other securities by their terms convertible into or evidencing a
right to purchase shares of stock of any other class of capital stock (or
series thereof) the shares of which rank prior to the shares of Preferred
Stock in respect of dividend payments or distributions or payments upon
Liquidation;
(ii) authorize or create any other series of Preferred Stock, the shares of
which rank prior to shares of Series F Stock in respect of dividend payments
or distributions or payments upon Liquidation; or authorize, create or issue
any bonds, notes, debentures, obligations, stock or other securities by
their terms convertible into or evidencing a right to purchase shares of any
other series of Preferred Stock which rank prior to the shares of Series F
Stock in respect of dividend payments or distributions or payments upon
Liquidation;
(iii) reclassify any shares of any class of capital stock into a class
ranking prior to the Preferred Stock in respect of dividend payments or
distributions or payments upon Liquidation; reclassify any shares of
Preferred Stock into a series which ranks prior to Series F Stock in respect
of dividend payments or distributions or payments upon Liquidation; or
reclassify any shares of Junior Stock into Series F Stock; or
(iv) authorize any amendment to the Articles of Organization which would
adversely affect the rights of the holders of the Series F Stock. For the
purposes of
77
this subparagraph (iv), the term "adversely affects" shall have the same
meaning as it has in Section 77 of Chapter 156B of the Massachusetts General
Laws, as in effect on June 24, 1993.
(c) Special Voting Rights. Notwithstanding the foregoing, in the event that,
at any time after the date of original issue of the shares of the Series F
Stock, an amount equal to the full accrued dividends for six (6) or more
quarterly dividend periods, whether or not consecutive, shall not have been
paid or declared and a sum sufficient for the payment thereof irrevocably set
aside in trust for the holders of all of such shares, the Board of Directors
of the corporation shall promptly take all necessary actions to increase the
authorized number of directors of the corporation by one (1), and the holders
of the shares of the Series F Stock then outstanding shall be entitled (by
series, voting as a single class) to elect one (1) person director to the
Board of Directors of the corporation (such right to elect one (1) director
being hereinafter sometimes referred to as the "special voting rights"), each
outstanding share having such right being entitled for such purpose to one
vote; provided, however, that at such time as the arrearage in payment of
dividends which gave rise to the exercise of the special voting rights has
been cured with regard to the Series F Stock by waiver or payment of all
accrued dividends, the right of the holders of such shares so to vote as
provided in this paragraph 7(c) shall cease (subject to renewal from time to
time upon the same terms and conditions), and the term of office of the person
who is at that time a director elected by such holders shall terminate and the
number of directors of the corporation shall be automatically reduced by one
(1).
(d) Special Voting Rights; Procedure. At any time after the special voting
rights shall have become vested in the holders of the shares of the Series F
Stock as provided in paragraph 7(c), the Clerk of the corporation, as promptly
as possible but in any event within twenty (20) days after receipt of the
written request of the holders of 10% of the shares of the Series F Stock then
outstanding, addressed to the corporation at its principal office, shall call
a special meeting of the holders of the shares of the Series F Stock for the
purpose of electing such
78
additional director, such meeting to be held at any place as provided by the
By-Laws of the corporation for meetings of the corporation's stockholders, and
upon not less than ten (10) nor more than twenty (20) days notice. If such
meeting shall not be so called within twenty (20) days after receipt of the
request by the Clerk of the corporation, then the holders of 10% of the shares
of the Series F Stock then outstanding may, by written notice to the Clerk of
the corporation, designate any person to call such meeting, and the person so
designated may call such meeting, at any such place as provided above and upon
not less than ten (10) nor more than twenty (20) days notice and for that
purpose shall have access to the stockholder record books of the corporation.
No such special meeting of the holders of the shares of the Series F Stock and
no adjournment thereof shall be held on a date later than thirty (30) days
before the annual meeting of stockholders of the corporation. At any meeting
so called or at any annual meeting held at any time when the special voting
rights are in effect, the holders of a majority of the shares of the Series F
Stock then outstanding, present in person or by proxy, shall be sufficient to
constitute a quorum for the election of such additional director, and such
additional director, together with any and all other directors who are then
members of the Board of Directors, shall constitute the duly elected directors
of the corporation.
(e) Vacancy in Office of Director Elected by Holders of Series F Stock. With
respect to a vacancy arising in the directorship referred to in paragraph 7(c)
at any time when the special voting rights are in effect pursuant to paragraph
7(c), upon the written request of the holders of 10% of the shares of the
Series F Stock then outstanding, addressed to the corporation at its principal
office, the Clerk of the corporation shall give notice of a special meeting of
holders of the shares of the Series F Stock of the election of a director to
fill such vacancy caused by the death, resignation or other inability to serve
as a director elected by such holders, to be held not less than ten (10) nor
more than twenty (20) days following receipt by the Clerk of the corporation
of such written request. So long as special voting rights are in effect
pursuant to paragraph 7(c), any director who shall have been so elected by the
holders of the Series F Stock may be
79
removed at any time, either with or without cause, only by the affirmative
vote of the holders of the shares at the time entitled to cast a majority of
the votes entitled to be cast for the election of such director at a special
meeting of such holders called for that purpose, and any vacancy thereby
created may be filled by the vote of such holders.
8. STATUS OF REDEEMED SHARES OF SERIES F STOCK. All shares of the Series F
Stock which have been redeemed by the corporation pursuant to paragraph 6 shall
have, after such redemption, the status of authorized but unissued shares of
Preferred Stock without designation of series and may be reissued but not as
shares of Series F Stock.
ARTICLE 5
The restrictions, if any, imposed by these Articles of Organization upon the
transfer of shares of stock of any class are as follows: None.
ARTICLE 6
(A) The Directors may amend, add to or repeal the By-Laws in whole or in part
except with respect to any provision thereof which, by law or the By-Laws
requires action of the stockholders.
(B) Meetings of the stockholders may be held anywhere in the United States.
(C) The corporation may be a partner in any business enterprise which the
corporation would have the power to conduct by itself.
(D) No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability; provided, however,
that this provision shall not eliminate the liability of a director, to the
extent that such liability is provided by applicable law, (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve
80
intentional misconduct or a knowing violation of law, (iii) under Section 61 or
62 (or successor provisions) of Chapter 156B of the Massachusetts General Laws
or (iv) for any transaction from which the director derived an improper personal
benefit. This provision shall not eliminate the liability of a director for any
act or omission occurring prior to the date upon which this provision becomes
effective. No amendment to or repeal of this provision shall apply to or have
any effect on the liability or alleged liability of any director for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
81
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
WILLIAM F. GALVIN, Secretary
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
ARTICLE OF AMENDMENT FEDERAL IDENTIFICATION
General Laws, Chapter 156B, Section 72 No. 04-2471221
We Charles K. Gifford President, and
Gary A. Spiess Clerk, of
Bank of Boston Corporation
- --------------------------------------------------------------------------------
(EXACT Name of Corporation)
located at: 100 Federal Street, Boston, Massachusetts 02110
-------------------------------------------------------------------
(MASSACHUSETTS Address of Corporation)
do hereby certify that these ARTICLES OF AMENDMENT affecting Articles Numbered:
3
- -----
- --------------------------------------------------------------------------------
(Number those articles 1,2,3,4,5, and/or 6 being amended hereby)
of the Articles of Organization were duly adopted at a meeting held on April 25
--------
1996 by vote of :
- ---
Common Stock
88,527,374 Shares of Par Value $2.25 per share out of 110,507,016 shares
- ------------ ------------------------- -----------
type, class & series, (if any)
outstanding,
____________ Shares of _________________________ out of ________ shares
type, class & series, (if any)
outstanding,
____________ shares of _________________________ out of _________ shares
type, class & series, (if any)
outstanding,
being at least a majority of each type, class or series outstanding and entitled
to vote thereon:
VOTED: That the Restated Articles of Organization of the Corporation be amended
by increasing and changing the authorized shares of Common Stock from
200,000,000 shares, par value $2.25 per share to 300,000,000 shares, par
value $1.50 per share.
To CHANGE the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
WITHOUT PAR VALUE STOCKS
- ---------------------------------
TYPE NUMBER OF SHARES
- ---------------------------------
COMMON:
- ---------------------------------
PREFERRED: 10,000,000*
- ---------------------------------
WITH PAR VALUE STOCKS
- --------------------------------------------
TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------
COMMON: 200,000,000 $2.25
- --------------------------------------------
PREFERRED:
- --------------------------------------------
CHANGE the total authorized to:
WITHOUT PAR VALUE STOCKS
- ---------------------------------
TYPE NUMBER OF SHARES
- ---------------------------------
COMMON:
- ---------------------------------
PREFERRED: 10,000,000*
- ---------------------------------
WITH PAR VALUE STOCKS
- --------------------------------------------
TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------
COMMON: 300,000,000 $1.50
- --------------------------------------------
PREFERRED:
- --------------------------------------------
*Of the 10,000,000 shares of Preferred Stock, the following series have been
authorized: 1,045,712 shares of Adjustable Rate Cumulative Preferred Stock,
Series A, (ii) 1,576,068 shares of Adjustable Rate Cumulative Preferred Stock,
Series B, (iii) 775,390 shares of Adjustable Rate Cumulative Preferred Stock,
Series C, (iv) 200,000 shares of Junior Participating Preferred Stock, Series
D, (v) 920,000 shares of 8.60% Cumulative Preferred Stock, Series E and (vi)
280,000 shares of 7 7/8% Cumulative Preferred Stock, Series F.
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 The General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date. EFFECTIVE
DATE:_____________________
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto signed
our names this 26th day of April in the year 1996.
/s/ CHARLES K. GIFFORD President
- -----------------------------------------------------------
Charles K. Gifford
/s/ GARY S. SPIESS Clerk
- -----------------------------------------------------------
Gary A. Spiess