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FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation); and
FLEET CAPITAL TRUST II
(a Delaware statutory business trust)
$250,000,000
7.92% Capital Securities
PURCHASE AGREEMENT
Dated: December 6, 1996
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Table of Contents
PURCHASE AGREEMENT ......................................................... 1
SECTION 1. Representations and Warranties. ................................ 4
(a) Representations and Warranties by the Company and the Trust. ... 4
(i) Compliance with Registration Requirements .............. 4
(ii) Incorporated Documents ................................. 5
(iii) Independent Accountants ................................ 5
(iv) Financial Statements ................................... 5
(v) No Material Adverse Change in Business ................. 5
(vi) Good Standing of the Company ........................... 6
(vii) Existence of Trust. .................................... 6
(viii) Common Securities. ..................................... 6
(ix) Authorization of Declaration. .......................... 6
(x) Guarantee Agreements ................................... 6
(xi) Capital Securities ..................................... 7
(xii) Authorization of Indenture ............................. 7
(xiii) Authorization of Debentures ............................ 7
(xiv) Authorization of Agreement ............................. 8
(xv) Absence of Defaults and Conflicts. ..................... 8
(xvi) Absence of Proceedings ................................. 8
(xvii) Absence of Further Requirements ........................ 9
(xviii) Possession of Licenses and Permits ..................... 9
(xix) Compliance with Cuba Act ............................... 9
(xx) Investment Company Act ................................. 9
(b) Officer's Certificates ......................................... 9
SECTION 2. Sale and Delivery to Underwriters; Closing ..................... 9
(a) Capital Securities. ............................................ 9
(b) Payment ........................................................ 10
(c) Denominations; Registration .................................... 10
SECTION 3. Covenants of the Company and the Trust ......................... 10
(a) Compliance with Securities Regulations and Commission Requests . 10
(b) Filing of Amendments ........................................... 11
(c) Delivery of Registration Statements ............................ 11
(d) Delivery of Prospectuses ....................................... 12
(e) Continued Compliance with Securities Laws ...................... 12
(f) Blue Sky Qualifications ........................................ 12
(g) Rule 158 ....................................................... 13
(h) Restriction on Sale of Securities .............................. 13
i
(i) Reporting Requirements ......................................... 13
SECTION 4. Payment of Expenses ............................................ 13
(a) Expenses ....................................................... 13
(b) Termination of Agreement ....................................... 14
SECTION 5. Conditions of Underwriters' Obligations ........................ 14
(a) Effectiveness of Registration Statement ........................ 14
(b) Opinion of Counsel for Company ................................. 14
(c) Opinion of Special Delaware Counsel for the Trust .............. 14
(d) Opinion of Counsel for Underwriters ............................ 15
(e) Officers' Certificates ......................................... 15
(f) Accountant's Comfort Letter .................................... 16
(g) Lock-up Agreements ............................................. 16
(h) Maintenance of Rating .......................................... 16
(i) Additional Documents ........................................... 16
(j) Termination of Agreement ....................................... 16
SECTION 6. Indemnification ................................................ 17
(a) Indemnification of Underwriters ................................ 17
(b) Indemnification of Trust by Company ............................ 17
(c) Indemnification of Trust, Company, Directors and Officers ...... 18
(d) Actions against Parties; Notification .......................... 18
(e) Settlement without Consent if Failure to Reimburse ............. 18
SECTION 7. Contribution ................................................... 19
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery ............................................... 20
SECTION 9. Termination of Agreement ....................................... 20
(a) Termination; General ........................................... 20
(b) Liabilities .................................................... 21
SECTION 10. Default by One or More of the Underwriters ..................... 21
SECTION 11. Notices ........................................................ 22
SECTION 12. Parties ........................................................ 22
SECTION 13. GOVERNING LAW AND TIME ......................................... 22
SECTION 14. Effect of Headings ............................................. 22
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SCHEDULES
Schedule A - List of Underwriters Sch A-1 Schedule B - List of
Subsidiaries Sch ..................................................... B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel ..................... A-1
Exhibit B - Form of Opinion of Trust's Special Delaware Counsel ...... B-1
Exhibit C - Form of Lock-up Letter ................................... C-1
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FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
FLEET CAPITAL TRUST II
(a Delaware statutory business trust)
$250,000,000
7.92% Capital Securities
(Liquidation Amount $1000 Per Capital Security)
PURCHASE AGREEMENTAGREEMENT
December 6, 1996
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
UBS SECURITIES LLC
X/X XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Fleet Capital Trust II (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. ss. ss. 3801 et seq.)
confirms its agreement with you, Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), CS First Boston Corporation
("CSFB"), Salomon Brothers Inc ("Salomon") and UBS Securities LLC ("UBS,"
together with Xxxxxxx Xxxxx, CSFB and Salomon, the "Underwriters," which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), with respect to the issue and sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 7.92 % Capital Securities (liquidation amount $1000 per
capital security) ("Capital Securities") set forth in said Schedule A hereto.
The Capital Securities are more fully described in the Prospectus (as defined
below).
The Capital Securities will be guaranteed by Fleet Financial Group, Inc.
(a Rhode Island corporation) (the "Company"), to the extent set forth in the
Prospectus (as defined below), with respect to distributions and amounts payable
upon liquidation or redemption (the "Capital Securities Guarantee"), pursuant to
the Capital Securities Guarantee Agreement (the "Capital Securities Guarantee
Agreement") to be dated as of Closing Time (as defined below), executed and
delivered by the Company and The First National Bank of Chicago (the "Guarantee
Trustee"), a national banking association not in its individual capacity but
solely as trustee, for the benefit of the holders from time to time of the
Capital Securities. The Company and the Trust each understand that the
Underwriters propose to make a public offering of the Capital Securities as soon
as they deem advisable after this Agreement has been executed and delivered, and
the Declaration (as defined herein), the Indenture (as defined herein), and the
Capital Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The entire proceeds from the
sale of the Capital Securities will be combined with the entire proceeds from
the sale by the Trust to the Company of its common securities (the "Common
Securities") guaranteed by the Company, to the extent set forth in the
Prospectus, with respect to distributions and amounts payable upon liquidation
or redemption (the "Common Securities Guarantee" and, together with the Capital
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
with the Capital Securities Agreement, the "Guarantee Agreements"), to be dated
as of Closing Time, executed and delivered by the Company for the benefit of the
holders from time to time of the Common Securities, and will be used by the
Trust to purchase the 7.92% Junior Subordinated Deferrable Interest Debentures
due 2026 (the "Debentures") issued by the Company. The Capital Securities and
the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, to be dated as of Closing Time (the
"Declaration"), among the Company, as Sponsor, The First National Bank of
Chicago, as institutional trustee (the "Institutional Trustee"), First Chicago
Delaware Inc., as Delaware trustee (the "Delaware Trustee"), and Xxxxxx X.
XxXxxxx, Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxxxxx, as regular trustees (the
"Regular Trustees" and together with the Institutional Trustee and the Delaware
Trustee, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Debentures will be issued
pursuant to an Indenture, to be dated as of Closing Time (the "Indenture"),
between the Company and The First National Bank of Chicago as trustee (the
"Indenture Trustee"), as supplemented by a Supplemental Indenture to be dated as
of Closing Time (the "Supplemental Indenture"), between the Company and the
Indenture Trustee. The Capital Securities, the Capital Securities Guarantee and
the Debentures are collectively referred to herein as the "Securities."
Capitalized terms used herein without definition have the respective meanings
specified in the Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-15435) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus (including
a prospectus supplement relating to the Securities) in accordance with the
provisions of Rule 430A ("Rule
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430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), if applicable, and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement
at the time it became effective (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Capital Securities is herein called
the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated November 1, 1996 together with the Term Sheet
and all references in this Agreement to the date of the Prospectus shall mean
the date of the Term Sheet. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
1. Representations and Warranties.
3
(a) Representations and Warranties by the Company and the Trust. The
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time referred to in
Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company and the Trust, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof, and at the Closing Time, the Registration
Statement, the Rule 462(b) Registration Statement, if any, and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time, included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company and the Trust will comply
with the requirements of Rule 434. The representations and warranties in
this subsection shall not apply (A) to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Trust or the Company in
writing by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement or Prospectus or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification on Form T-1 (the "Forms T-1) under the Trust Indenture Act
of the Indenture Trustee, the Institutional Trustee and the Guarantee
Trustee.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the
4
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, at the date hereof, at the time the Prospectus
was issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock, except for dividends paid by the Company in the ordinary course of
business consistent with past practice.
5
(vi) Good Standing of the Company. Each of the Company and the
subsidiaries of the Company listed on Schedule B hereto, (the "Significant
Subsidiaries") has been duly incorporated and is validly existing as a
corporation or national banking association in good standing under the
laws of the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; the Company is duly qualified to
do business as a foreign corporation under the laws of the State of New
York and the laws of the Commonwealth of Massachusetts; and neither the
Company nor any Significant Subsidiary is required to be qualified to do
business as a foreign corporation under the laws of any other
jurisdiction, and the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
(vii) Existence of Trust. The Trust has been duly created and is
validly existing in good standing as a business trust under the Delaware
Act, is and will be treated as a "grantor trust" for federal income tax
purposes under existing law, has the business trust power and authority to
conduct its business as presently conducted and as described in the
Prospectus, and is not required to be authorized to do business in any
other jurisdiction.
(viii) Common Securities. The Common Securities have been duly
authorized by the Declaration and, when issued and delivered by the Trust
to the Company in accordance with the terms of the Declaration and against
payment therefor as described in the Prospectus, will be validly issued
and (subject to the terms of the Declaration) fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; the issuance of
the Common Securities is not subject to preemptive or other similar
rights; no holder thereof will be subject to personal liability by reason
of being such a holder; and at the Closing Time, all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(ix) Authorization of Declaration. The Declaration has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
validly executed and delivered by the Company and the Regular Trustees,
and assuming the due authorization, execution and delivery of the
Declaration by the Delaware Trustee and the Institutional Trustee, the
Declaration will constitute a valid and binding obligation of the Company
and the Regular Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
6
(x) Guarantee Agreements. The Capital Securities Guarantee Agreement
has been duly authorized by the Company and duly qualified under the 1939
Act and, when validly executed and delivered by the Company, and assuming
due authorization, execution and delivery of the Capital Securities
Guarantee Agreement by the Guarantee Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(xi) Capital Securities. The Capital Securities have been duly
authorized by the Declaration and, when authenticated in the manner
provided for in the Declaration and issued and delivered pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and (subject to the terms of the Declaration) fully paid
and nonassessable undivided beneficial interests in the assets of the
Trust; the issuance of the Capital Securities is not subject to preemptive
or other similar rights; and holders of Capital Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit incorporated under the
General Corporation Law of the State of Delaware.
(xii) Authorization of Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
duly executed and delivered by the Company and assuming the due
authorization, execution and delivery of the Indenture by the Indenture
Trustee, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiii) Authorization of Debentures. The Debentures have been duly
authorized by the Company, and when executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and paid
for as provided in this Agreement, the Debentures will constitute valid
and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
7
(xiv) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
(xv) Absence of Defaults and Conflicts. The execution and delivery
by the Company and the Trust of, and the performance by the Company and
the Trust of their obligations under, this Agreement, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, the Declaration, the Capital Securities Guarantee
Agreement and the Indenture, the issuance and delivery by the Trust of the
Common Securities and Capital Securities and the consummation of the sale
of the Capital Securities and the fulfillment of the terms herein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under (in each case
material to the Company and its subsidiaries (including the Trust)
considered as a whole or as to the Trust separately), any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease, financing
agreement or other similar agreement or instrument to which the Company or
any of its subsidiaries (including the Trust) is a party or by which the
Company or any of its subsidiaries (including the Trust) is bound or to
which any of the property or assets of the Company or any of its
subsidiaries (including the Trust) is subject, nor will such actions
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or the Declaration of the Trust,
nor will such actions result in any violation (in each case material to
the Company and its subsidiaries (including the Trust) considered as a
whole or as to the Trust separately) of any statute or any order, rule or
regulation of any court or regulatory authority or other governmental body
having jurisdiction over the Trust or the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for, and the absence of which would materially affect,
the performance by the Company and the Trust of their obligations under
this Agreement and the issuance and delivery of the Capital Securities,
except such approvals as will be obtained under the Securities Act, the
Exchange Act or the 1939 Act and as may be required by the securities or
Blue Sky laws of the various states or the securities laws of non-U.S.
jurisdictions in connection with the sale of the Capital Securities.
(xvi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company or the Trust, threatened, against or affecting the Company or
any subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the properties or assets of
the Company and its subsidiaries taken as a whole or the consummation of
the transactions contemplated in this Agreement or the performance by the
Company or the Trust of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
8
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except for such
Governmental Licenses the absence of which would not cause a Material
Adverse Effect; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xviii) Compliance with Cuba Act. The Company and the Trust have
complied with, and is and will be in compliance with, the provisions of
that certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the rules
and regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xix) Investment Company Act. Neither the Company nor the Trust is,
and upon the issuance and sale of the Capital Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus neither will be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended (the "1940 Act").
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby.
2. Sale and Delivery to Underwriters; Closing
(a) Capital Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the purchase price of $1000 per Capital Security, the number of Capital
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any
9
additional number of Capital Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, subject,
in each case, to such adjustments among the Underwriters as they in their sole
discretion shall make to eliminate any sales or purchases of fractional
securities. As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Capital Securities
will be used to purchase the Debentures, the Company hereby agrees to pay at the
Closing Time to the Underwriters a commission of $10.00 per Capital Security
purchased by the Underwriters.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Capital Securities shall be made at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Underwriters, the
Company and the Trust, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriters, the Company and the Trust (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Capital Securities to be purchased by them. It is
understood that each Underwriter has authorized Xxxxxxx Xxxxx, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for
the Capital Securities which it has agreed to purchase. Xxxxxxx Xxxxx,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Capital Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
At Closing Time the Company will pay, or cause to be paid, the commission
payable at such time under this Section 2 to Xxxxxxx Xxxxx on behalf of the
Underwriters by wire transfer of immediately available funds.
(c) Denominations; Registration. Certificates for the Capital Securities
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least two full business days before the Closing Time.
The certificates for the Capital Securities will be made available for
examination and packaging by the Underwriters in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time.
3. Covenants of the Company and the Trust. The Company and the Trust
jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company and the Trust, subject to Section 3(b), will comply with the
requirements of
10
Rule 424, Rule 430A or Rule 434, as applicable, and will notify the
Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any prospectus, or of the suspension of the qualification of the Capital
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes. The Company
and the Trust will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company and the Trust
will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
Underwriters notice of their intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Underwriters with copies of any such
documents to, and consult with, the Underwriters and their counsel within
a reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to which the
Underwriters or counsel for the Underwriters shall reasonably object in
writing; provided, however, that the foregoing shall not apply to any of
the Company's filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which
such filings the Company will cause to be delivered to the Underwriters
promptly after being transmitted for filing with the Commission.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Underwriters and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and, upon request, documents
incorporated or deemed to be incorporated by reference therein), and will
also deliver to the Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
11
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of the Prospectus as such
Underwriter reasonably requests, and the Company and the Trust hereby
consent to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the
Trust will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and
in the Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Capital
Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters and
for the Company or Trust, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company and the Trust will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company and the Trust will each use
its best efforts, in cooperation with the Underwriters, to qualify the
Capital Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Underwriters may designate and to maintain such qualifications in effect
for a period of not less than one year from the date hereof; provided,
however, that neither the Company nor the Trust shall be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Capital Securities have been so qualified,
the Company and the Trust will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less
12
than one year from the date hereof. The Company and the Trust will also
supply the Underwriters with such information as is necessary for the
determination of the legality of the Capital Securities for investment
under the laws of such jurisdictions as the Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 7 days
from the date of the Prospectus, neither the Company nor the Trust will,
without the prior written consent of Xxxxxxx Xxxxx, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of
any Capital Securities or Debentures (or any equity or debt securities
substantially similar to the Capital Securities or Debentures,
respectively). The foregoing sentence shall not apply to the Capital
Securities or Debentures to be sold hereunder.
(i) Reporting Requirements. The Company and the Trust, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
4. Payment of Expenses. (a) Expenses. The Company will pay all expenses
incident to the performance of its and the Trust's obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Capital Securities, (iii)
the preparation, issuance and delivery of the certificates for the Capital
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Capital Securities to the Underwriters, (iv) the fees and disbursements of the
Company's and the Trust's counsel, accountants and other advisors, (v) the
qualification of the Capital Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, if any, (vi) the printing and delivery to the Underwriters of copies of
each preliminary prospectus, any Term Sheets and of the Prospectus and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, if
any, (viii) the fees and expenses of any transfer agent or registrar for the
Capital Securities, (ix) the fees and expenses of the Indenture Trustee,
including the fees and disbursements of counsel for the Indenture Trustee in
connection with the Indenture and the
13
Debentures, (x) the fees and expenses of the Delaware Trustee, the Institutional
Trustee and the Guarantee Trustee, including the fees and disbursements of
counsel for the Delaware Trustee, the Institutional Trustee and the Guarantee
Trustee, (xi) any fees payable in connection with the rating of the Capital
Securities and the Debentures and (xii) the cost and charges associated with the
approval of the Capital Securities by the Depositary Trust Company for
"book-entry" transfer.
(a) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
5. Conditions of Underwriters' Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Company and the Trust contained in Section 1 hereof or in
certificates of any officer of the Company or any Trustee delivered pursuant to
the provisions hereof, to the performance by the Company and the Trust of their
respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxx & Xxxxxx, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters substantially to the effect set forth in Exhibit A hereto and
to such further effect as counsel to the Underwriters may reasonably
request. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(c) Opinion of Special Delaware Counsel for the Trust. At Closing
Time, the Underwriters shall have received the favorable opinion, dated as
of the Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Delaware),
special Delaware counsel to the Trust, together with signed or reproduced
copies of such letter for each of the Under-
14
writers to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters with respect to the validity of the Capital
Securities, the Registration Statement, the Prospectus and other related
matters as the Underwriters may reasonably request. In giving such opinion
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law
of the United States, the Business Trust Act of the State of Delaware and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Underwriters. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(e) Officers' Certificates. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, (A) any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Underwriters shall have received a certificate
of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are
true and correct with the same force and effect as though expressly made
at and as of Closing Time (except for representations or warranties which
by their terms speak as of a different date or dates), (iii) the Company
has complied in all material respects with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are, to the best of the Company's
knowledge, threatened by the Commission; or (B) any material adverse
change in the condition, financial or otherwise, or in the earnings or
business affairs of the Trust, and the Underwriters shall have received a
certificate of a Regular Trustee of the Trust, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and
as of Closing Time (except for representations or warranties which by
their terms speak as of a different date or dates), (iii) the Trust has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been
15
instituted or are pending or are, to the best of the Trust's knowledge,
threatened by the Commission.
(f) Accountant's Comfort Letter. At the Closing Time, the
Underwriters shall have received from KPMG Peat Marwick LLP ("KPMG") a
letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for
each of the Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(g) Lock-up Agreements. At the date of this Agreement, the
Underwriters shall have received an agreement substantially in the form of
Exhibit C hereto signed by the Company and the Trust.
(h) Maintenance of Rating. At Closing Time, the Capital Securities
shall be rated at least a2 by Xxxxx'x Investors Service, Inc. and BBB by
Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and the
Company shall have delivered to the Underwriters a letter dated the
Closing Time, from each such rating agency, or other evidence satisfactory
to the Underwriters, confirming that the Capital Securities have such
ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Capital Securities or
any of the Company's preferred securities by any "nationally recognized
statistical rating agency", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's preferred securities.
(i) Additional Documents. At Closing Time counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the
issuance and sale of the Capital Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company and Trust in connection with the
issuance and sale of the Capital Securities as herein contemplated shall
be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Underwriters by notice
to the Company at any time at or prior to Closing Time and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
6. Indemnification.
16
(a) Indemnification of Underwriters. Each of the Company and the Trust
jointly and severally agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Trust by Company. The Company agrees to indemnify
the Trust against all loss, liability, claim, damage and expense whatsoever as
due from the Trust under Section 6(a) hereunder.
17
(c) Indemnification of Trust, Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, the Company's directors, each of the Company's officers and the Trustee
of the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company, in each case reasonably
acceptable to the indemnifying party. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any
18
settlement of the nature contemplated by Section 6(a) (ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein; then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Trust on the one hand and the Underwriters on the other hand from the offering
of the Capital Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Trust on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions, which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust on the one
hand and the Underwriters on the other hand in connection with the offering of
the Capital Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Trust on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Trust and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or
19
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company and the Trustee of the
Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Capital Securities set
forth opposite their respective names in Schedule A hereto and not joint.
8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Trustees of the Trust or any of
its other subsidiaries submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Capital Securities to the Underwriters.
9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement,
by notice to the Company and the Trust, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable to market
the Capital Securities or to enforce
20
contracts for the sale of the Capital Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time to purchase the Capital Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Capital Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Capital Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Underwriters or the Company shall have the right to
postpone Closing Time, for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of
21
telecommunication. Notices to the Underwriters shall be directed to Xxxxxxx
Xxxxx at North Tower, World Financial Center, New York, New York 10281-1201,
attention of Syndicate Operations; notices to the Trust shall be directed to it
at The First National Bank of Chicago, Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxxxxx, attention of Corporate Trust Administrator and notices to the
Company shall be directed to it at Fleet Financial Group, Inc., Xxx Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, attention of General Counsel.
12. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and the Trust and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Trust and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Trust and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
14. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Trust a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters, the Company and the Trust in
accordance with its terms.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Treasurer
FLEET CAPITAL TRUST II
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Regular Trustee
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Title: Regular Trustee
23
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
UBS SECURITIES LLC
By: XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxx Xxxxxx
------------------------------------
Authorized Signatory
24
SCHEDULE A
Number of
Name of Underwriter Capital Securities
------------------- ------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated .................................................. 62,500
CS First Boston Corporation ..................................... 62,500
Salomon Brothers Inc ............................................ 62,500
UBS Securities LLC .............................................. 62,600
-------
Total ........................................................... 250,000
=======
Sch A-1
SCHEDULE B
List of Significant Subsidiaries
Fleet National Bank
Fleet Bank
Fleet Bank, National Association
Sch B-1
Exhibit A
Form of opinion, dated as of Closing Time, of Xxxxxxx & Xxxxxx, counsel
for the Company and the Trust, substantially to the effect that:
a) Each of the Company and the subsidiaries of the Company listed
on Schedule B hereto, (the "Significant Subsidiaries") has been duly
incorporated and is validly existing as a corporation or national banking
association in good standing under the laws of the jurisdiction in which
it is chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the
Prospectus; the Company is duly qualified to do business as a foreign
corporation under the laws of the State of New York; and neither the
Company nor any Significant Subsidiary is required to be qualified to do
business as a foreign corporation under the laws of any other
jurisdiction, and the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
b) All the outstanding shares of the capital stock of the
Significant Subsidiaries have been duly and validly authorized and issued
and are fully paid and (except as provided in 12 U.S.C. ss. 55 in the case
of Fleet National Bank and Fleet Bank, National Association)
nonassessable, and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the Significant Subsidiaries are
owned by the Company, free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other
security interests claims, liens or encumbrances.
c) The Purchase Agreement has been duly authorized by the Company
and has been duly executed and delivered by each of the Company and the
Trust.
d) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
e) The Debentures have been duly authorized, executed and delivered
by the Company and when the Debentures have been duly authenticated by the
Indenture Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Trust, the Debentures will constitute
valid and binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
A-1
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
f) The Declaration has been duly authorized, executed and delivered
by the Company; and, assuming the due authorization, execution and
delivery of the Declaration by First Chicago Delaware Inc. and The First
National Bank of Chicago, the Declaration constitutes a valid and binding
obligation of the Company and is enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
g) The Capital Securities Guarantee Agreement has been duly
authorized, executed and delivered by the Company, and is a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
h) The Indenture, Capital Securities Guarantee Agreement and the
Declaration have each been duly qualified under the 0000 Xxx.
i) The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive rights under the Articles of
Incorporation or By-Laws of the Company or the laws of the State of Rhode
Island to subscribe for the Capital Securities or the Debentures.
j) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no opinion), when
they were filed with the Commission complied as to form in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder.
k) The statements made in the Prospectus under the captions
"Description of the Capital Securities", "Description of the Guarantee",
"Description of the Junior Subordinated Debentures" and "Effect of
Obligations Under the Junior Subordinated Debentures and the Guarantee",
insofar as such statements purport to summarize certain provisions of the
Capital Securities, the Common Securities, the Debentures, the Capital
A-2
Securities Guarantee, the Indenture, the Declaration, the Capital
Securities Guarantee Agreement and the Articles of Incorporation of the
Company, to the extent that they constitute matters of law or legal
conclusions, have been reviewed by such counsel and fairly summarize the
information required to be disclosed therein.
l) Neither the issue and sale by the Trust of the Capital
Securities, nor the consummation of any other of the transactions
contemplated by the Purchase Agreement nor the fulfillment of the terms in
the Purchase Agreement will conflict with, result in a breach of, or
constitute a default under the charter or by-laws of the Company or the
organizational documents or Declaration of the Trust or the terms of any
indenture or other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or bound, or any
order or regulation known to such counsel to be applicable to the Company
or any of its subsidiaries of any governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries.
m) Neither the Company nor the Trust is required to be registered
under the Investment Company Act of 1940, as amended.
n) There is no pending or, to the best knowledge of such counsel,
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or filed
as required.
o) Such counsel has been orally advised by the Commission that the
Registration Statement was declared effective under the 1933 Act on
December 5, 1996; any required filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act has been made in the manner and within the time
period required by Rule 424(b) and, such counsel has been orally advised
by the Commission that no stop order suspending the effectiveness of the
Registration Statement has been issued by the Commission and, no
proceeding for that purpose is pending or, to such Counsel's knowledge,
threatened by the Commission.
p) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by the Purchase Agreement, except such as have
been obtained under the Securities Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Capital Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained.
q) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
A-3
r) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act
and the 1933 Act Regulations, except that in each case such counsel need
not express an opinion as to the financial statements, schedules and other
financial and statistical data included therein or excluded therefrom or
the exhibits to the Registration Statement, and such counsel need not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus
except for those made under the captions "Description of Capital
Securities", "Description of the Guarantee", "Description of the Junior
Subordinated Debentures", "Effect of Obligations Under the Junior
Subordinated Debentures and the Guarantee", and "Description of Capital
Stock" in the Prospectus insofar as they relate to provisions of documents
therein described.
Additionally, in giving its opinion, such counsel shall state that such
counsel has participated in conferences with representatives of the
Underwriters, officers and other representatives of the Company and
representatives of the independent certified public accountants of the Company,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel does
not pass upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except and only to the extent as set forth in
paragraphs (xxviii) above), on the basis of the foregoing (relying as to
materiality to a large extent upon the discussions with and representations and
opinions of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead such counsel to believe that
the Registration Statement at the time it became effective or at the date hereof
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date or the date of such
opinion, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that such
counsel does not express any comment with respect to the financial statements
including the notes thereto and supporting schedules, or any other financial and
statistical data set forth or referred to in the Registration Statement or the
Prospectus.
A-4
Exhibit B
Form of opinion, dated as of Closing Time, of Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Delaware), special Delaware counsel for the Trust, substantially
to the effect that:
s) the Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; and the Trust has the
trust power and authority to conduct its business, all as described in the
Prospectus.
t) assuming due authorization, execution and delivery of the
Declaration by the Company and the Trustees, the Declaration is a valid and
binding agreement of the Company and the Trustees, enforceable against the
Company and the Trustees, in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity).
u) the Capital Securities have been duly authorized for issuance in
accordance with the Declaration and the Prospectus and, subject to the
qualifications set forth below, when certificates therefor in the form examined
by us are issued, executed and authenticated in accordance with the Declaration
and delivered and paid for in accordance with the Purchase Agreement, will be
validly issued, fully paid and non-assessable undivided beneficial interests in
the assets of the Trust and will entitle the holders thereof to the benefits of
the Declaration except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity). The holders of the Capital Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We bring to your attention, however, that the holders
of Capital Securities may be obligated, pursuant to the Declaration, to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of Capital Securities and the
issuance of replacement Capital Securities, and (ii) provide security and
indemnity in connection with requests of or directions to the Institutional
Trustee to exercise its rights and powers under the Declaration.
v) the issuance of the Capital Securities is not subject to
preemptive or other similar rights under the Delaware Act or the Declaration.
B-1
w) under the Declaration and the Delaware Act, the Trust has the
requisite trust power and authority to execute and deliver the Purchase
Agreement, and to perform its obligations under the Purchase Agreement and the
transactions contemplated thereby. The Purchase Agreement has been duly
authorized, executed and delivered by the Trust.
x) the statements made in the Prospectus under the caption
"Description of the Capital Securities" insofar as such statements are
statements of Delaware law, such statements are fairly presented.
B-2
[Form of lock-up pursuant to Section 5(g)]
Exhibit C
December 6, 1996
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
CS FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
UBS SECURITIES LLC
x/x XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Proposed Public Offering by Fleet Financial Group, Inc.
Dear Sirs:
The undersigned, Fleet Financial Group, Inc., a Rhode Island corporation
(the "Company") and Fleet Capital Trust II, a Delaware Statutory business trust
(the "Trust") understand that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated ("Xxxxxxx Xxxxx"), CS First Boston Corporation, Salomon
Brothers Inc and UBS Securities LLC propose to enter into a Purchase Agreement
(the "Purchase Agreement") with the Company and the Trust, providing for the
public offering of $250,000,000 of the Trust's 7.92% Capital Securities
("Capital Securities"). In connection with the foregoing, the Company will
deposit in the Trust its 7.92% Junior Subordinated Deferable Interest Debentures
due 2026 (the "Junior Subordinated Debentures"). In recognition of the benefit
that such an offering will confer upon the undersigned and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the
Purchase Agreement that, during a period of seven (7) days from the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of Xxxxxxx Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any Capital Securities, any security convertible into or
exchangeable into or exercisable for Capital Securities or Junior Subordinated
Debentures or any debt securities substantially similar to the Junior
Subordinated Debentures or equity securities substantially similar to the
Capital Securities, whether now owned or hereafter acquired by the undersigned
or with respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with
C-1
respect to any of the foregoing (except for the filing of any amendment to the
Form S-4 filed by the Company and Fleet Capital Trust I with the Securities and
Exchange Commission on November 13, 1996) or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of Capital Securities, any
security convertible into or exchangeable into or exercisable for Capital
Securities or Junior Subordinated Debentures or any debt securities
substantially similar to the Junior Subordinated Debentures or equity securities
substantially similar to the Capital Securities, whether any such swap or
transaction is to be settled by delivery of Capital Securities, Junior
Subordinated Debentures or other securities, in cash or otherwise.
C-2
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By: ________________________________
Title: _____________________________
FLEET CAPITAL TRUST II
By: ________________________________
Name:
Title: Regular Trustee
By: ________________________________
Name:
Title: Regular Trustee
C-3
