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EXHIBIT 3(a)
BANK OF BOSTON CORPORATION
Boston, Massachusetts
Restated
Articles of Organization
Rev.11/93
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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
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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
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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
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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.
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"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.
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"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
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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
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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
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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
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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 2 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
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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
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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.
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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.
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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
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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
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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;
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(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
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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
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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:
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(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.
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"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
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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
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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.
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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 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 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
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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)
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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
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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
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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
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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,
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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
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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.
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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
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(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
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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
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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
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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
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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
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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
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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
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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
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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.
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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,
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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
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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
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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
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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.
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(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;
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(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
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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
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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,
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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
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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
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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
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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
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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
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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;
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(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
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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
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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
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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
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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.
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"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
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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
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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.
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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
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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
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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
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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,
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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
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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
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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.
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"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
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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
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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
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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
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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
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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.
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(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
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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
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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
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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
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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.
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