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EXHIBIT (4)(b)
FLEET BOSTON CORPORATION
FORM OF WARRANT AGREEMENT [FOR WARRANTS SOLD ATTACHED TO DEBT SECURITIES](1)
THIS WARRANT AGREEMENT is dated as of ______________ between Fleet
Boston Corporation, a Rhode Island corporation (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to) and _______________________________________, as Warrant
Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of [], 1999
(the "Indenture") with The Bank of New York, as trustee (the "Trustee"),
providing for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (the "Debt Securities"), to be issued in one
or more series, as provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of Debt Securities being
offered] (the "Offered Securities") with warrant certificates evidencing one or
more warrants (the "Warrants" or individually a "Warrant") representing the
right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. ISSUANCE OF WARRANTS. Warrants shall be initially issued
in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after __________, 19__ (the "Detachable Date")]
[and shall not be separately transferable] and each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein to purchase a
Warrant
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(1) Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants and Warrant Securities. Monetary amounts may be in U.S.
dollars, in a foreign denominated currency or in one or more units of foreign
currencies such as the Euro.
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Security in the principal amount of $_______________. Warrant Certificates shall
be initially issued in units with the Offered Securities and each Warrant
Certificate included in such a unit shall evidence _____ Warrants for each
$________ principal amount of Offered Securities included in such unit.
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each
Warrant Certificate, whenever issued shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated
_____________________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, any Vice
Chairman, its President, any Vice President, its Treasurer or one of its
Assistant Treasurers under its corporate seal and attested by its Secretary or
one of its Assistant Secretaries. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
[If bearer Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [If Offered Securities with Warrants
which are not immediately detachable -, prior to the Detachable Date, the
registered owner of the Offered Security to which such Warrant Certificate was
initially attached and after such Detachable Date] the bearer of such Warrant
Certificate.]
[If registered Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be
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registered upon the books to be maintained by the Warrant Agent for that
purpose. [If Offered Securities with Warrants which are not immediately
detachable - or upon the register of the Offered Securities prior to the
Detachable Date. The Company will or will cause the registrar of the Offered
Securities to make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date.]]
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
$___________ aggregate principal amount of Warrant Securities (except as
provided in Section 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
$________ aggregate principal amount of Warrant Securities and shall deliver
such Warrant Certificates to or upon the order of the Company. Subsequent to
such original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates [If registered Warrants - or in connection with their transfer], as
hereinafter provided or as provided in Section 2.03(c).
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.
SECTION 2.01. WARRANT PRICE. On _____________ 19, ___, the exercise
price of each Warrant is $___________. During the period from _____________,
19___, through and including _____________, 19___, the exercise price of each
Warrant will be $________ plus [accrued amortization of the original issue
discount] [accrued interest] from _____________, 19___. On ____________, 19___,
the exercise price of each Warrant will be $________. During the period from
_________________, 19___, through and including ______________, 19___, the
exercise price of each Warrant will be $________ plus [accrued amortization of
the original issue discount] [accrued interest] from _______________, 19___. [In
each case, the original issue discount will be amortized at a ____% annual rate,
computed on an annual basis using a 360-day year consisting of twelve 30-day
months]. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price." [The original issue discount for each $1,000
principal amount of Warrant Securities is $____.]
SECTION 2.02. DURATION OF WARRANTS. Each Warrant may be exercised in
whole at any time as specified herein on or after [the date hereof]
[______________, 19___,] and at or before 5 p.m. New York time on _____________,
19___ (the "Expiration Date"). Each Warrant not exercised at or before 5 p.m.
New York time on the Expiration Date shall become void, and all rights of the
holder of the Warrant Certificate evidencing such Warrant under this Agreement
shall cease.
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SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified in
Section 2.02, any whole number of Warrants may be exercised by providing certain
information set forth on the reverse side of the Warrant Certificate and by
paying in full, [in lawful money of the United States of America] [in cash or by
certified check or official bank check or by bank wire transfer, in each case]
[by bank wire transfer], in immediately available funds, the Warrant Price for
each Warrant exercised to the Warrant Agent at its corporate trust office [or at
________], provided that such exercise is subject to receipt within five
business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and duly
executed. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it and shall advise the
Company by telephone at the end of each day on which a [payment] [wire transfer]
for the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice to the
Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee under the Indenture of (i) the
number of Warrants exercised, (ii) the instructions of each holder of the
Warrant Certificates evidencing such Warrants with respect to delivery of the
Warrant Securities to which such holder is entitled upon such exercise, (iii)
delivery of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and (iv) such other information as the Company or
the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled in fully
registered form, registered in such name or names as may be direct by such
holder(2). If fewer than all of the Warrants evidenced by such Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, a new Warrant
Certificate evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
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(2) Subject to change in accordance with changes in tax laws and regulations.
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ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDER CONFERRED BY WARRANTS
OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
principal of, premium, if any, or interest on Warrant Securities or to enforce
any of the covenants in the Indenture.
SECTION 3.02 LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATES.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it, and in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate may, in
his own behalf and for his own benefit, enforce and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce, or
otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
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ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [If
Offered Securities with Warrants which are immediately detachable - Upon] [If
Offered Securities with Warrants which are not immediately detachable - Prior to
the Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Securities to which the Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Securities. Prior to the
Detachable Date, each transfer of the Offered Securities [on the register of the
Offered Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ___________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [If registered Warrants: or the transfer thereof may be
registered in whole or in part]; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. [If registered Warrants - The Warrant Agent shall keep, at its
corporate trust office [and at ________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or __________] for exchange [or registration of transfer],
properly endorsed or accompanied by appropriate instruments of registration of
transfer and written instructions for transfer, all in form satisfactory to the
Company and the Warrant Agent.] No service charge shall be made for any exchange
[or registration of transfer] of Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange [or
registration of transfer]. Whenever any Warrant Certificates are so surrendered
for exchange [or registration of transfer] an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company as so requested. The Warrant Agent shall not be required
to effect any exchange [or registration of transfer] which will result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number
of full Warrants and a fraction of a Warrant. All Warrant Certificates issued
upon any exchange [or registration of transfer] of Warrant Certificates shall be
the valid obligations of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or registration of transfer].
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [If Offered
Securities with bearer Warrants which are not immediately detachable - Subject
to Section 4.01. each] [If Offered Securities with bearer Warrants which are
immediately detachable - Each] Warrant Certificate shall be transferable by
delivery and shall be deemed negotiable and the bearer of each Warrant
Certificate may be treated by the Company, the Warrant Agent and all other
persons dealing with such bearer as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.] [If registered
Warrants which are not immediately detachable -
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Every holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
such Warrant Certificate that until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent [or the register of the Offered
Securities prior to the Detachable Date] the Company and the Warrant Agent] or
the registrar of the Offered Securities prior to the Detachable Date], may treat
the registered holder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.]
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [registration of transfer] or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.01. WARRANT AGENT. The Company hereby appoints _________ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
________ hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company
also agrees to indemnity the Warrant Agent for, and to hold it harmless
against any loss, liability or expense incurred without negligence or
bad faith on the part of the Warrant Agent, arising out of or in
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connection with its acting as Warrant Agent hereunder, as well as the
costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect to any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transaction. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or they may engage or be interested in
any financial or other transaction with the Company and may act on, or
as depository, trustee or agent for, any committee or body of holders
of Warrant Securities or other obligations of the Company as freely as
if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee for any series of Debt Securities under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
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(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to
the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of
any written demand from a holder of a Warrant Certificate with respect
to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or, except as provided in
Section 6.02, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company
agrees, for the benefit of the holders of the Warrant Certificates, that there
shall at all times be a Warrant Agent hereunder until all the Warrant
Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it shall
become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02 (a) shall continue to the extent set forth
therein notwithstanding the registration or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code as now constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under
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any other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as foresaid of a successor Warrant Agent and
acceptance by the successor Warrant Agent of such appointment, the Warrant Agent
shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trust, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies securities and
other property on deposit with or held by such predecessor, as Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. AMENDMENT. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein or making any other provisions with respect
to matters or questions arising under this Agreement as the Company and the
Warrant Agent may deem necessary or desirable: provided that such action shall
not adversely affect the interests of the holders of the Warrant Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. ADDRESSES. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
_______________ Attention: _____________, and any communication from the Warrant
Agent to the Company with respect
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to this Agreement shall be addressed to Fleet Boston Corporation, One Federal
Street, Boston, Massachusetts 02110, Attention: General Counsel (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company.)
SECTION 6.04. APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. DELIVERY OF PROSPECTUS. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with, the delivery of the Warrant Securities issued
upon such exercise, a Prospectus.
SECTION 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including, without limitation, a registration statement in respect
of the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in
this Agreement shall give to any person other than the Company. the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be affixed hereunto, and
the same to be attested, all as of the day and year first above written.
FLEET BOSTON CORPORATION
By:
-----------------------------------
Attest:
- --------------------------- [NAME OF WARRANT AGENT],
As Warrant Agent
By:
-----------------------------------
Attest:
- --------------------------
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EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
[FACE OF WARRANT CERTIFICATE]
[Form of Legend of Prior to _______________, this Warrant Certificate
Debt Securities with cannot be transferred or exchanged unless attached
Warrants which are not to a [Title of Offered Securities].]
immediately detachable
EXERCISEABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FLEET BOSTON CORPORATION
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
VOID AFTER 5 P.M. NEW YORK TIME ON ________________, 19___
[No.] Warrants
This certifies that [the bearer is the] [____________________ or
registered assigns is the registered] owner of the above indicated number of
Warrants, each warrant entitling such [bearer] [owner] to purchase, at any time
[after 5 p.m. New York time on ________________, 19___ and] on or before 5 p.m.
New York time on _________________, 19___ $____________ principal amount of
[Title of Warrant Securities] (the "Warrant Securities") of Fleet Boston
Corporation (the "Company"), issued and to be issued under the Indenture (as
hereinafter defined) on the following basis: [on ______________, 19____ the
exercise price of each Warrant is $________; during the period from
________________, 19___ through and including __________________, 19___, the
exercise price of each Warrant will be $________ plus [accrued amortization of
the original issue discount] [accrued interest] from _______________, 19___; on
________________, 19___ the exercise price of each Warrant will be $_______;
during the period from ________________, 19___ through and including
_________________, 19___, the exercise price of each Warrant will be $_______
plus [accrued amortization of the original issue discount] [accrued interest]
from _____________, 19___ [in each case, the original issue discount will be
amortized at a _____% annual rate, computed on an annual basis, using a 360-day
year consisting of twelve 30-day months] (the "Warrant Price"). [The original
issue discount for each $1,000 principal amount of Warrant Securities is
$_______.] The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying in full, [in
lawful money of the United States of America] [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds, the Warrant Price for each Warrant
exercised to the warrant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof duly executed, at
the corporate trust office of [name of Warrant Agent], or its successor as
warrant agent (the "Warrant Agent"), [or ______] currently at the
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address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of $______ and any integral multiples thereof. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be issued
to the holder hereof a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _______________, 19___ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at _____________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of ___________, 1999 (the "Indenture"),
between the Company and The Bank of New York, as trustee, and will be subject to
the terms and provisions contained in the Indenture. Copies of the Indenture and
the form of the Warrant Securities are on file at the corporate trust office of
the trustee [and at _________________________].
[If Offered Securities with bearer Warrants which are not immediately
detachable - Prior to ________________, 19___, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Securities. After such date, this [If Offered
Securities with bearer Warrants which are immediately detachable - This] Warrant
Certificate, and all rights hereunder, may be transferred by delivery and the
Company and the Warrant Agent may treat the bearer hereof as the owner for all
purposes.]
[If Offered Securities with registered Warrants which are not
immediately detachable - Prior to _________________, 19___, this Warrant
Certificate may be exchanged or transferred only together with the [Title of
Offered Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Securities. After such date, this
[If Offered Securities with registered Warrants which are immediately detachable
- - Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or _____________] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable - Except as provided in the immediately preceding paragraph after]
[If Offered Securities with Warrants
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which are immediately detachable After] countersignature by the Warrant Agent
and prior to the expiration of this Warrant Certificate, this Warrant
Certificate may be exchanged at the corporate trust office of the Warrant Agent
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _______________, 19___.
FLEET BOSTON CORPORATION
By
------------------------------------
Attest:
- -----------------------------
Countersigned:
- -----------------------------
As Warrant Agent
By
---------------------------
Authorized Signature
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[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder must pay [in cash
or by certificate check or official bank check or by bank wire transfer] [by
bank wire transfer], in immediately available funds, the Warrant Price in full
for Warrants exercised to [insert name of Warrant Agent] Corporate Trust
Department, [insert address of Warrant Agent], Attn. __________________ [or
__________________], which [payment] [wire transfer] must specify the name of
the holder and the number of Warrants exercised by such holder. In addition, the
holder must complete the information required below and present this Warrant
Certificate in person or by mail (registered mail is recommended) to the Warrant
Agent at the addresses set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise _________
Warrants, evidenced by this Warrant Certificate, to purchase $________ principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of Fleet
Boston Corporation and represents that he has tendered payment for such Warrant
Securities [in cash or by certified check or official bank check or by bank wire
transfer, in each case] [by bank wire transfer], in immediately available funds,
to the order of Fleet Boston Corporation, c/o [insert name and address of
Warrant Agent], in the amount of $_________ in accordance with the terms hereof.
The undersigned requests that said principal amount of Warrant Securities be in
fully registered form in the authorized denominations, registered in such names
and delivered all as specified in accordance with the instructions set forth
below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: Name
- ---------- ---------- ---------- --------------------------------------
(Please Print)
- ---------- ---------- ----------
Address
-----------------------------------
-----------------------------------
Signature
---------------------------------
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The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
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By mail at
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[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants - complete as
appropriate.]
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CERTIFICATE FOR DELIVERY OF BEARER WARRANT SECURITIES
FLEET BOSTON CORPORATION
WARRANT SECURITIES
TO: Fleet Boston Corporation
c/o
____________________, as Trustee
This certificate is submitted in connection with our request that you
deliver to us $____________ principal amount of Warrant Securities in bearer
form upon exercise of Warrants. We hereby certify that either (a) none of such
Warrant Securities will be held by or on behalf of a United States Person, or
(b) if a United States Person will have a beneficial interest in such Warrant
Securities, such person is described in Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1954, as amended, and the regulations
thereunder. As used herein, "United States Person" means a citizen or resident
of the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof or an estate or trust whose income from sources without the United
States includible in gross income for United States Federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: --------------------------------------
(Please print name)
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[IF REGISTERED WARRANT]
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER DESIRES
TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED _______________________ hereby sells, assigns and
transfers unto _________________________________________
_____________________________________________ Please insert social security
(Please print name and address including zip code) or other identifying number
--------- -------- ----------
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the Warranty represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _____________________ Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated: --------------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a commercial bank, trust
company or member broker of the New
York, American, Midwest or Pacific
Stock Exchange.)
Signature Guaranteed:
- -------------------------------------
*Subject to change in accordance with changes in tax laws and regulations.