EXHIBIT 10.28
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[*]" ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. COMPLETE, UNREDACTED
COPIES OF THIS EXHIBIT HAVE BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT REQUEST.
AGREEMENT FOR PURCHASE
AND SALE OF PARTNERSHIP INTERESTS
THIS AGREEMENT FOR PURCHASE AND SALE OF PARTNERSHIP INTERESTS (this
"AGREEMENT") is made as of this 7th day of December, 2000, by and among Fleet
National Bank, a national banking association ("FLEET"); BancBoston Services,
Inc., a Massachusetts corporation ("FLEET SUB"), DST Systems, Inc., a Delaware
corporation ("DST"), and DST EquiServe, Inc., a Delaware corporation ("DST
SUB"). Fleet and Fleet Sub are collectively referred to as "Sellers". DST and
DST Sub are collectively referred to as "Purchasers."
RECITALS
WHEREAS, BFDS Limited, Inc., a Massachusetts corporation ("BFDS"), BFDS
General, Inc., a Massachusetts corporation ("BFDS SUB"), First Chicago Trust
Company of New York, a New York limited purpose trust company ("FCTC"), FCTC
General, Inc., a Delaware corporation ("BANK ONE SUB"), Fleet and Fleet Sub are
parties to the EquiServe Limited Partnership Amended and Restated Limited
Partnership Agreement, dated November 30, 1998 (the "PARTNERSHIP AGREEMENT") and
hold all of the general and limited partnership interests in the limited
partnership formed and operated pursuant to such agreement and the laws of
Delaware (the "PARTNERSHIP"); and
WHEREAS, Purchasers desire to purchase and Sellers desire to sell all of
the general and limited partnership interests owned by Sellers in the
Partnership.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall have
the meanings set forth below:
"AFFILIATE" means, with respect to any Person, any other Person
controlling, controlled by or under common control with, such Person. As used in
this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise with respect to any Person, and any other Person
controlling, controlled by or under common control with such Person.
"AGREEMENT" means this Agreement for Purchase and Sale of Partnership
Interests and all exhibits and schedules attached hereto.
"CHANGE IN CONTROL" means (i) any event in which any other Person or group
of related Persons acquires, directly or indirectly, more than 50% of the voting
equity interests in a specified Person, through a purchase, exchange or other
acquisition of such equity interests, a merger, a consolidation or any similar
transaction or (ii) any event in which any other Person or group of related
Persons acquires substantially all of the assets of a specified Person.
"CODE" means the Internal Revenue Code of 1986, as amended and in effect
from time to time.
"COMPETING BUSINESS" means the business of providing services, in
substantially the same manner as such services are provided by the Partnership
on the Initial Closing Date: (i) to Issuers, as registrar, transfer agent,
dividend disbursement agent, employee stock purchase plan agent, demutualization
agent, escheatment service agent, rights agent, exchange agent, tender agent and
proxy processing service administrator, including, in each case, in connection
with odd lot and other redemption and buy-back transactions, mergers,
divestitures and other reorganizations, in all cases solely with respect to the
equity securities of such Issuers, and (ii) to the U.S. government as government
allotment administrator for U.S. government employees.
"CONSENTING DESIGNATED CUSTOMER" means a Designated Customer who has either
(i) consented to the transactions contemplated hereby or (ii) received or waived
the receipt of any prior notice of the transactions contemplated hereby required
under the terms of the Designated Customer Service Agreement to which such
Designated Customer is a party.
"DECONVERSION COSTS" means any deconversion costs required to be paid under
the terms of a Designated Customer Service Agreement in the event of a
termination of such Designated Customer Service Agreement by the Designated
Customer party thereto as a result of the breach by the other party thereto.
"DEFERRED PAYMENT" means each of the payments contemplated in SECTIONS
2.2(c), (d), (e) and (f) and 2.5 hereof.
"DESIGNATED CUSTOMER" means each of the customers of the Partnership set
forth on EXHIBIT A hereto.
"DESIGNATED CUSTOMER REVENUE NUMBER" means Recurring Revenues associated
with each Designated Customer, as set forth opposite the name of each such
Designated Customer on EXHIBIT A hereto.
"DESIGNATED CUSTOMER SERVICE AGREEMENT" means the agreement between a
Designated Customer and Fleet, FCTC or the Partnership, as the case may be,
pursuant to which the Partnership performs any of the services described under
the definition of "Competing Business".
"FEDERAL FUNDS RATE" means, for the period involved, the average of the
interest rates for each day of the period set forth in H.15(519) opposite the
caption "Federal Funds (Effective)".
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"H.15(519)" means the weekly statistical release designated as such, or any
successor publication, published by the Board of Governors of the Federal
Reserve System.
"FLEET CONTRIBUTION AGREEMENT" means the Asset Purchase Agreement dated as
of September 29, 1995, between the Partnership and Fleet.
"FLEET LP INTERESTS" means, collectively, all the rights, title and
interests of Fleet, as a limited partner in the Partnership, including all
rights, title and interests of Fleet under the Partnership Agreement and as a
limited partner of the Partnership under the laws of Delaware, all rights and
powers to vote on or participate in actions on behalf of the Partnership, all
interests in the profits, losses, distributions, income, credits, and deductions
of the Partnership, and Fleet' allocable share of the property, whether real,
personal, or mixed, now or at any time owned or held by the Partnership.
"FLEET PARENT" means FleetBoston Financial Corporation.
"FLEET RESIDUAL INTEREST" means the Residual Interest held by Fleet.
"FLEET SUB GP INTERESTS" means, collectively, all the rights, title and
interests of Fleet Sub as a general partner in the Partnership, including all
rights, title and interests of Fleet Sub under the Partnership Agreement and as
a general partner of the Partnership under the laws of Delaware, all rights and
powers to vote on or participate in actions on behalf of the Partnership, all
interests in the profits, losses, distributions, income, credits, and deductions
of the Partnership, and of Fleet Sub's allocable share of the property, whether
real, personal, or mixed, now or at any time owned or held by the Partnership.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Improvements Act.
"ISSUERS" means U.S. corporations, other U.S. securities issuers, including
limited partnerships, closed-end investment companies and issuers of American
Depository Receipts and issuers of American Depository Shares (excluding
open-end investment companies and unit investment trusts).
"1999 RECURRING REVENUES" means $230,974,000.
"OUT OF BALANCE CONDITIONS" means [*]
"OUT OF BALANCE RESERVE" has the meaning ascribed to such term in the
definition of "Out of Balance Conditions".
"PARTNERSHIP AGREEMENT AMENDMENT" means the amendment to the Partnership
Agreement being executed simultaneously herewith by Fleet, Fleet Sub, DST, DST
Sub, BFDS, BFDS Sub, FCTC and Bank One Sub.
"PERSON" means any individual, partnership, corporation, association,
trust, limited liability company, joint partnership, unincorporated organization
and any government or political subdivision thereof, governmental department or
agency.
"RECURRING REVENUES" means [*]
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"RESERVED BUSINESS" means the business of providing services to Issuers and
other Persons (i) acting in any capacity solely with respect to the debt
securities of such Issuers and other Persons, (ii) as class action processing
agent, and (iii) as bankruptcy claims administrator.
"RESIDUAL INTEREST" has the meaning given to such term in the Partnership
Agreement Amendment.
"REVENUE ADJUSTMENT FACTOR" means [*]
"SELLERS' INTERESTS" means, collectively, the Fleet Sub GP Interests and
the Fleet LP Interests.
"SPECIAL SERVICE FEES" means revenue received by the Partnership through
EquiServe Trust Company or from banks that is derived from deposits by
Partnership customers (existing and future) that are held for dividends and
other distributions.
1.2 Cross References to Certain Terms Defined Elsewhere in this Agreement.
TERM SECTION
---- -------
Actual Purchase Price 2.2(g)
Actual Redeemed Accounts 2.3
Annualized Revenue 2.8(a)
Average Redemption 2.3
Bank One Sub Preamble
BFDS Preamble
BFDS Sub Preamble
Changed Circumstances 7.6(b)
Claim 12.3(a)
Closing(s) 10.1
Closing Date(s) 10.1
Disclosing Party 7.1
DST Preamble
DST Sub Preamble
FCTC Preamble
FCTC Sale Agreement 8.1(f)
Final Closing 10.1
Final Closing Date 10.1
Final Deferred Payment 2.3
Fleet Preamble
Fleet Sub Preamble
Formal Written Action 7.9
Indemnified Party 12.3(a)
Indemnifying Party 12.3(a)
Information 7.1
Initial Closing 10.1
Initial Closing Date 10.1
Initial FCTC Closing 8.6
Material Adverse Effect 8.7
4
Minimum Purchase Price 2.2(g)
Nonredeemed Account Revenue 2.3
Ownership Change 2.8(b)
Partnership Recitals
Partnership Agreement Recitals
Purchase Price 2.2
Purchaser(s) Preamble
Purchasers Losses 12.1
Redeemable Accounts 2.3
Redemption Percentage 2.3
Repurchase Program 2.3
Restricted Period 7.6(a)
Seller(s) Preamble
Sellers Losses 12.2
Terminating Designated Customer 2.4
Third Party Claim 12.3(a)
Third Party Consent 5.4
Third Party Consents 5.4
ARTICLE 2
PURCHASE AND SALE; PRICE
2.1 PURCHASE AND SALE OF THE SELLERS' INTERESTS. At the Initial Closing and
in the manner herein provided, Fleet shall sell, transfer, assign and deliver
all of its Fleet LP Interests (except the Fleet Residual Interest) to DST, and
Fleet Sub shall sell, transfer, assign and deliver all of its Fleet Sub GP
Interests to DST Sub. At the Final Closing and in the manner herein provided,
Fleet shall sell, transfer, assign and deliver the Fleet Residual Interest to
DST.
2.2 [*]
2.3 [*]
2.4 [*]
2.5 [*]
2.6 [*]
2.7 [*]
2.8 [*]
2.9 SET-OFF. DST shall not be entitled to offset any claim DST or the
Partnership has against Sellers pursuant to SECTION 12.1(b) hereof or arising
out of the Fleet Contribution Agreement against the obligations of DST to pay
the Purchase Price hereunder.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS
As a material inducement to DST to enter into this Agreement, Sellers
hereby jointly and severally represent and warrant to DST as follows:
3.1 ORGANIZATION.
(a) Fleet is a national banking association duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has all requisite power and authority to (i) own the
Fleet LP Interests, to be a party to the Partnership Agreement and to
exercise its rights and perform its obligations thereunder, and (ii) enter
into this Agreement and perform all of its obligations hereunder.
(b) Fleet Sub is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and has
all requisite corporate power and authority to (i) own the Fleet GP
Interests, to be a party to the Partnership Agreement and to exercise its
rights and perform its obligations thereunder, and (ii) enter into this
Agreement and perform all of its obligations hereunder.
(c) The Partnership is a Delaware limited partnership, validly
existing and in good standing under the laws of the State of Delaware and
has all requisite power and authority to own and operate the assets owned
by it and to carry on its business as now conducted by it. The Partnership
Agreement is a legal, valid, and binding contract as to Sellers by and
among its general and limited partners, enforceable against Sellers in
accordance with its terms, and is in full force and effect, subject to and
limited by bankruptcy, insolvency, reorganization, moratorium, usury, and
other similar laws now or hereafter in effect relating to creditors' rights
generally and general principles of equity (regardless of whether
considered in a proceeding in equity or at law). Except with respect to the
Partnership Agreement Amendment, neither Seller has agreed to any written
or oral amendments or modifications to the Partnership Agreement.
3.2 AUTHORITY; ENFORCEABILITY. Except as set forth in EXHIBIT 3.2 hereof,
the execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate action on the part of Sellers and will not
result in any violation of or conflict with or constitute a default under (i)
any term of the charter or bylaws or other constitutive documents of Sellers,
(ii) any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to the Sellers or (iii) any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to the Partnership, in each case, other than such violations or
conflicts which would not materially adversely affect the ability of Sellers to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by each of Sellers and constitutes the legal, valid and
binding obligation of Sellers enforceable against Sellers in accordance with the
terms hereof.
3.3 Title to the Sellers' Interests.
(a) Fleet is the lawful owner of, has good and valid title to the
Fleet LP Interests, and, subject to the consents described on EXHIBIT 3.3
having been obtained, has all rights to sell, transfer, assign and deliver
to DST all of the Fleet LP Interests. Except
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as set forth on EXHIBIT 3.3, all of the Fleet LP Interests are free and
clear of any liens, claims, security interests, pledges, conditional sales
agreements, title retention agreements, encumbrances, defects as to title
or restrictions against the transfer and assignment thereof.
(b) Fleet Sub is the lawful owner of, has good and valid title to the
Fleet Sub GP Interests, and, subject to the consents described on EXHIBIT
3.3, has all rights to sell, transfer, assign and deliver all of the Fleet
Sub GP Interests to DST Sub. Except as set forth on EXHIBIT 3.3, all of the
Fleet Sub GP Interests are free and clear of any liens, claims, security
interests, pledges, conditional sales agreements, title retention
agreements, encumbrances, defects as to title or restrictions against the
transfer and assignment thereof.
3.4 GOVERNMENTAL CONSENTS. Except as set forth on EXHIBIT 3.3, no consent,
approval or authorization of, or registration, qualification or filing with, any
governmental agency or authority is required for the execution and delivery of
this Agreement by Sellers or for the consummation by Sellers of the transactions
contemplated hereby.
3.5 NON-COMPETITION AGREEMENTS. Neither of the Sellers have entered into
any agreement, written or oral, which is, or as a result of the transactions
contemplated hereby would become binding upon the Partnership or the Purchasers
and which would in any way limit the ability or authority of the Partnership or
the Purchasers to compete with, or engage in, any line of business as conducted
by the Partnership on the Initial Closing Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
As a material inducement to Sellers to enter into this Agreement,
Purchasers hereby represent and warrant to Sellers as follows:
4.1 ORGANIZATION. Each of DST and DST Sub are corporations duly organized,
validly existing and in good standing under the laws of the jurisdictions in
which they are organized and each of them have all requisite corporate power and
authority to enter into this Agreement and to perform their obligations
hereunder.
4.2 AUTHORITY; ENFORCEABILITY. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary corporate action on the
part of DST and DST Sub and will not result in any violation of or conflict with
or constitute a default under (i) any term of the charter, bylaws or other
constitutive documents of either DST or DST Sub , or (ii) any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to either DST or DST Sub. This Agreement has been duly executed and
delivered by DST and DST Sub and constitutes the legal, valid and binding
obligation of DST and DST Sub enforceable against DST and DST Sub in accordance
with the terms hereof.
4.3 GOVERNMENTAL CONSENTS. Except as set forth on EXHIBIT 4.3 hereto, no
consent, approval or authorization of, or registration, qualification or filing
with, any governmental agency or authority is required for the execution and
delivery of this Agreement by Purchasers or for the consummation by the
Purchasers of the transactions contemplated hereby.
7
4.4 FINANCING. Purchasers have, and will have at each of the Closings,
sufficient cash on hand to pay the Purchase Price.
ARTICLE 5
COVENANTS OF SELLERS
Sellers, jointly and severally, hereby covenant and agree as follows:
5.1 COOPERATION. Sellers will cooperate in good faith with Purchasers and
use commercially reasonable efforts to cause the transactions contemplated by
this Agreement to be consummated in accordance with its terms and conditions.
5.2 CURRENT INFORMATION Unless restricted by law, during the period from
the date of this Agreement to the Initial Closing, if requested by DST, Sellers
will cause one or more of their representatives to confer on a regular and
frequent basis with representatives of DST with respect to the status of the
ongoing operations of the Partnership. Sellers will promptly notify DST to the
extent they become aware of any material change in the normal course of the
business of the Partnership and, to the extent permitted by applicable law, of
any governmental complaints, investigations or hearings (or communications
indicating that the same may be contemplated), or the institution or the threat
of material litigation involving Sellers or the Partnership which would in any
manner, challenge, prevent, alter or materially delay any of the transactions
contemplated in this Agreement, and Sellers will keep DST informed with respect
to such events. Sellers will also notify DST of the status of regulatory
applications and Third Party Consents (as defined below) related to the
transactions contemplated hereby.
5.3 FULL ACCESS AND DISCLOSURE. Sellers shall afford to DST and its
counsel, accountants and other authorized representatives access during business
hours to the Partnership's properties, books and records in order that DST may
have full opportunity to make such reasonable investigations as it shall desire
to make of the affairs of the Partnership and Sellers will cause their officers
and employees and the officers and employees of the Partnership to furnish such
additional financial and operating data and other information as DST shall from
time to time reasonably request regarding the Partnership. From time to time
prior to the Initial Closing Date, Sellers will promptly supplement or amend in
writing information previously delivered to DST with respect to any matter
hereafter arising which, if existing or occurring at the date of this Agreement,
would have been required to be set forth or disclosed, but only to the extent
such information is known to Sellers.
5.4 CONSENTS AND APPROVALS OF THIRD PARTIES. Sellers shall use all
commercially reasonable efforts to obtain all consents and approvals of, and
deliver all required notices to, any other Person necessary for the consummation
of the transactions contemplated by this Agreement, including the Designated
Customers (other than governmental or regulatory authorities, which shall be
covered by SECTION 7.10 hereof) (each such consent, a "THIRD PARTY CONSENT" and
collectively, "THIRD PARTY CONSENTS"). Sellers shall use all commercially
reasonable efforts to assist Purchasers in obtaining all Third Party Consents.
5.5 FULFILLMENT OF CONDITIONS. Sellers will take all commercially
reasonable steps necessary or desirable, and proceed diligently and in good
faith, to satisfy each condition to the obligations of Purchasers contained in
this Agreement and will not take or fail to take any action that could
reasonably be expected to result in the nonfulfillment of any such condition.
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ARTICLE 6
COVENANTS OF PURCHASERS
Purchasers hereby covenant and agree as follows:
6.1 COOPERATION. Purchasers will cooperate in good faith with Sellers and
use commercially reasonable efforts to cause the transactions contemplated by
this Agreement to be consummated in accordance with its terms and conditions.
6.2 CONSENTS AND APPROVALS OF THIRD PARTIES. Purchasers shall use all
commercially reasonable efforts to make all filings with, and obtain all Third
Party Consents.
6.3 FULFILLMENT OF CONDITIONS. Purchasers will take all commercially
reasonable steps necessary or desirable, and proceed diligently and in good
faith, to satisfy each condition to the obligations of Sellers contained in this
Agreement and will not take or fail to take any action that could reasonably be
expected to result in the nonfulfillment of any such condition.
ARTICLE 7
ADDITIONAL COVENANTS AND AGREEMENTS
Purchasers and Sellers hereby covenant and agree that:
7.1 CONFIDENTIALITY. Each party to this Agreement shall hold, and shall
cause its respective subsidiaries and their directors, officers, employees,
agents, consultants and advisors to hold, in strict confidence and use solely
for the purpose of consummating the transactions contemplated by this Agreement
and for no other purpose including, without limitation, any purpose which is
directly or indirectly detrimental to the disclosing party or any of its
respective Affiliates, unless disclosure to a banking or other regulatory
authority is necessary or appropriate or unless compelled to disclose by
judicial or administrative process or, in the written opinion of its counsel, by
other requirement of law or the applicable requirements of any regulatory agency
or relevant stock exchange, all non-public records, books, contracts, reports,
instruments, computer data and other data and information (collectively,
"INFORMATION") concerning the other party (or, if required under a contract with
a third party, such third party) furnished it by such other party or its
representatives pursuant to this Agreement, except to the extent that such
Information can be shown to have been (a) previously known by such party on a
non-confidential basis, (b) available to such party on a non-confidential basis
from a source other than the disclosing party, (c) in the public domain through
no fault of such party or (d) later lawfully acquired from other sources by the
party to which it was furnished, and none of the parties shall release or
disclose such Information to any other person, except its auditors, attorneys,
financial advisors, bankers, other consultants and advisors and, to the extent
permitted above, to bank regulatory authorities. In the event that a party to
this Agreement becomes compelled to disclose any Information in connection with
any necessary regulatory approval or by judicial or administrative process, such
party shall provide the party who provided such Information (the "Disclosing
Party") with prompt prior written notice of such requirement so that the
Disclosing Party may seek a protective order or other appropriate remedy. In the
event that such protective order, or other remedy is not obtained, only that
portion of the Information which is legally required to be disclosed shall be so
disclosed.
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7.2 AGREEMENT TO DEFEND. In the event any action, suit, proceeding or
investigation is instituted to restrain or prohibit the consummation of the
transactions contemplated under this Agreement, whether before or after the
Initial Closing Date, all the parties hereto agree to cooperate and use their
best efforts to defend against and respond thereto.
7.3 WARRANTIES UNDER FLEET CONTRIBUTION AGREEMENT. Nothing in this
Agreement shall modify the terms of the Fleet Contribution Agreement or expand
or limit the rights or obligations of the parties thereunder.
7.4 FLEET PARENT TRANSFER AGENCY SERVICES AGREEMENT. Simultaneously on the
date hereof, Fleet Parent, the Partnership and EquiServe Trust Company have
executed a transfer agency services agreement.
7.5 LEGACY SYSTEM SUPPORT SERVICES AGREEMENT. Subsequent to the Closing,
Fleet shall continue to perform all of its obligations under the Master Services
Agreement between the Partnership and Fleet, dated September 29, 1995, as
amended November 30, 1998. Any third party license fees incurred by Fleet in
connection with or as a consequence of sale of its interests in the Partnership
shall be borne solely by Fleet.
7.6 [*]
7.7 WAIVER OF TRANSFER RESTRICTIONS. Simultaneously on the date hereof,
Fleet, Fleet Sub, FCTC, Bank One Sub, BFDS and BFDS Sub have executed an
agreement whereby all restrictions under the Partnership Agreement with respect
to the transfer of Sellers' Interests and the interests of FCTC and Bank One Sub
in the Partnership have been waived.
7.8 TRANSFER OF CUSTOMER CONTRACTS. Within a reasonable time prior to the
expiration of transfer agency service agreements between Partnership customers
and Fleet, DST shall cause the Partnership to use reasonable commercial efforts
to obtain transfer of such contracts to the Partnership. Fleet shall use
reasonable commercial efforts to assist the Partnership in implementing such
transfers. Notwithstanding anything to the contrary contained herein, following
the Initial Closing, Fleet shall be under no obligation to renew any customer
contract which expires after the Initial Closing or enter into any new customer
contracts.
7.9 REGULATORY CONDITION. Notwithstanding anything to the contrary
contained herein, if, during the period after the date hereof until the Initial
Closing Date, any state or federal banking or securities regulatory authority
imposes a cease and desist order, written agreement or similar formal regulatory
action ("FORMAL WRITTEN ACTION") against the Partnership, then, notwithstanding
the satisfaction or waiver of all conditions to closing set forth in Article 8
hereof, DST shall be entitled to (a) delay the Initial Closing for two (2)
business days from the date DST receives written notice from Fleet or the
Partnership of the imposition of the Formal Written Action, if all other
conditions to closing set forth in Article 8 have otherwise been satisfied, or
(b) if all other conditions to closing set forth in Article 8 shall have not
been satisfied, to suspend its performance under this Agreement for two (2)
business days from the date DST receives written notice from Fleet or the
Partnership of the imposition of the Formal Written Action. On the third (3rd)
business day after the date DST receives written notice from Fleet or the
Partnership of the imposition of the Formal Written Action, DST shall notify
Fleet if (i) DST elects to consummate the transactions contemplated hereby in
accordance with all terms of this Agreement (and without any amendments thereto)
notwithstanding the imposition of the
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Formal Written Action, in which case, DST shall not be entitled thereafter to
terminate this Agreement for any reason relating to the imposition of the Formal
Written Action, and the Initial Closing shall occur promptly thereafter (or as
soon as all conditions to closing set forth in Article 8 shall have otherwise
been satisfied), or (ii) DST elects not to consummate the transactions
contemplated hereby, in which case, this Agreement shall terminate and be of no
further force and effect. Each of the parties hereto agrees that the provisions
of this SECTION 7.9 shall contain the sole and exclusive remedy available to DST
in the event a Formal Written Action is imposed against the Partnership prior to
the Initial Closing Date, and that neither Purchasers nor Sellers shall be
entitled to seek indemnification from the other parties hereto with respect to
any such Formal Written Action, whether issued before or after the Initial
Closing Date.
7.10 HSR ACT AND OTHER FILINGS.
(a) Purchasers and Sellers shall (a) as promptly as practicable after
the date hereof, with each of Purchasers and Sellers using their
commercially reasonable efforts to make a prompt filing, make such filings
as may be required by the HSR Act with respect to the transactions
contemplated hereby, (b) respond promptly to inquiries from the Department
of Justice and the Federal Trade Commission in connection with such
filings, (c) file or cause to be filed as promptly as practicable with the
Department of Justice and Federal Trade Commission any supplemental
information that may be requested pursuant to the HSR Act, and (d) seek the
earliest possible termination or waiver of the waiting period under such
statute. Purchasers and Sellers shall as promptly as practicable after the
date hereof, with each of Purchasers and Sellers using their commercially
reasonable efforts to make prompt filings, also file or cause the filing of
all notices, applications, and requests described EXHIBITS 3.3 or 4.3.
(b) Each of Purchasers and Sellers shall promptly inform each other
of any material communication made to, or received by such party from, the
Federal Trade Commission, the Antitrust Division of the Department of
Justice or any other governmental agency or authority.
(c) Each of Purchasers and Sellers shall have the right to review and
approve in advance all descriptions of it and its Affiliates which appear
in any filing made in connection with the transactions contemplated by this
Agreement with any governmental authority. In exercising the foregoing
right, the parties hereto shall act reasonably and as promptly as possible.
7.11 THIRD PARTY CONSENTS. In the event, that, on the Initial Closing Date,
there are Third Party Consents for which a consent to the transactions
contemplated hereby has not been obtained, then, in addition to the foregoing,
until such time as such consent is obtained or is not otherwise obtainable,
Purchasers and Sellers shall use their reasonable efforts to (i) obtain such
Third Party Consent, (ii) provide to the Partnership the benefits and burdens of
the contract to which such Third Party Consent relates, and (iii) cooperate in
any reasonable and lawful arrangement designed to provide such benefits to the
Partnership.
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ARTICLE 8
CONDITIONS TO THE OBLIGATIONS OF PURCHASERS
Subject in all cases to SECTION 7.9 hereof, the obligation of Purchasers to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction, on or before the Initial Closing Date, of each of the
following conditions unless waived in writing by DST:
8.1 REPRESENTATIONS AND WARRANTIES. Except as otherwise permitted or
contemplated by this Agreement, the representations and warranties of Sellers
contained in this Agreement shall have been true and correct in all material
respects at and as of the date hereof, and shall be true and correct in all
material respects at and as of the Initial Closing Date with the same force and
effect as though newly made at and as of the Initial Closing Date.
8.2 SELLERS' PERFORMANCE. Each of the obligations of Sellers to be
performed or complied with on or before the Initial Closing Date pursuant to the
terms of this Agreement shall have been duly and fully performed or complied
with in all material respects on or before the Initial Closing Date.
8.3 GOVERNMENTAL CONSENTS AND APPROVALS. All consents from and filings with
regulators and governmental agencies required to consummate the transactions
contemplated hereby (including those described in EXHIBITS 3.3 and 4.3), and
which, either individually or in the aggregate, if not obtained, could cause a
material adverse effect on the Partnership shall have been obtained and
delivered to DST, it being expressly understood that no Third Party Consent
shall be required to be obtained by any party hereto prior to the Initial
Closing.
8.4 NO PROCEEDING OR LITIGATION; LEGAL RESTRAINT. No action, suit or
proceeding before any court or any governmental or regulatory authority shall
have been commenced or threatened after the date hereof, and no investigation by
any governmental or regulatory authority shall have been commenced or threatened
after the date hereof against any of Sellers, the Partnership, Purchasers or any
of their respective principals, officers or directors seeking to restrain,
prevent or change (but only if such change would materially adversely affect the
benefits to be derived by Purchasers hereunder) the transactions contemplated
hereby or questioning the validity or legality of any of such transactions or
seeking damages in connection with any of such transactions. No order,
injunction or other legal restraint or prohibition issued by any federal or
state banking or other regulatory authority or court of competent jurisdiction
shall prohibit the consummation of the transactions contemplated hereby.
8.5 OFFICERS' CERTIFICATE OF FULFILLMENT OF CONDITIONS. Sellers shall have
furnished DST with such certificates, instruments or other documents in the name
or on behalf of Sellers, executed by appropriate officers of Sellers, including,
without limitation, certificates or correspondence of governmental agencies or
authorities or non-governmental third parties, to evidence fulfillment of the
conditions set forth in this ARTICLE 8 as DST may reasonably request; provided,
however, that any such certificate, instrument or other document so requested by
DST shall be of a type that is customary in transactions similar to the
transactions contemplated hereby.
8.6 FCTC AND BANK ONE SUB SALE AGREEMENT AND CLOSINGS. The transactions
contemplated by that certain Agreement for Purchase and Sale of Partnership
Interests, dated as of the date hereof, by and among Purchasers, FCTC and Bank
One Sub (the "FCTC
12
AGREEMENT"), pursuant to which all of the general and limited partnership
interests in the Partnership owned by FCTC and Bank One Sub are being sold to
Purchasers, shall be completed simultaneously with the Initial Closing (the
"INITIAL FCTC CLOSING").
8.7 ADVERSE CHANGES. No event or events shall have occurred since September
30, 2000, that, individually or in the aggregate, have had or would reasonably
be expected to have a Material Adverse Effect on the Partnership. For purposes
of this Agreement, "Material Adverse Effect" shall mean a material adverse
change in a Person's financial condition, without taking into account changes
resulting from the announcement of the transactions contemplated by this
Agreement, changes in generally accepted accounting principles, changes in the
industry in which the Person operates, changes in the economy generally and
changes as a result of a failure to obtain a Third Party Consent.
8.8 SECTION 754 ELECTION. The Partnership and all partners of the
Partnership shall have executed and delivered all forms and documents and taken
all actions necessary to effect the election under Section 754 of the Code as
set forth in SECTION 2.6.
8.9 OTHER AGREEMENTS. All agreements described in ARTICLE 7 shall have been
executed and delivered to DST.
ARTICLE 9
CONDITIONS TO THE OBLIGATIONS OF SELLERS
The obligation of Sellers to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction, on or before the Initial
Closing Date, of each of the following conditions unless waived in writing by
Sellers:
9.1 REPRESENTATIONS AND WARRANTIES. Except as otherwise permitted or
contemplated by this Agreement, the representations and warranties of Purchasers
contained in this Agreement shall have been true and correct in all material
respects at and as of the date hereof, and shall be true and correct in all
material respects at and as of the Initial Closing Date with the same force and
effect as though newly made at and as of the Initial Closing Date.
9.2 PURCHASER'S PERFORMANCE. Each of the obligations of the Purchasers to
be performed or complied with on or before the Initial Closing Date pursuant to
the terms of this Agreement shall have been duly and fully performed or complied
with in all material respects on or before the Initial Closing Date.
9.3 GOVERNMENTAL CONSENTS AND APPROVALS. All consents from and filings with
regulators and governmental agencies required to consummate the transactions
contemplated hereby shall have been obtained and delivered, it being expressly
understood that no Third Party Consent shall be required to be obtained by any
party hereto prior to the Initial Closing.
9.4 PAYMENT. Purchasers shall have paid the portion of the Purchase Price
required to be paid as described in SECTION 2.2.
9.5 NO PROCEEDING OR LITIGATION; LEGAL RESTRAINT. No action, suit or
proceeding before any court or any governmental or regulatory authority shall
have been commenced or threatened
13
after the date hereof, and no investigation by any governmental or regulatory
authority shall have been commenced or threatened after the date hereof
against any of Sellers, the Partnership, Purchasers or any of their
respective principals, officers or directors seeking to restrain, prevent or
change (but only if such change would materially adversely affect the
benefits to be derived by Sellers hereunder) the transactions contemplated
hereby or questioning the validity or legality of any of such transactions or
seeking damages in connection with any of such transactions. No order,
injunction or other legal restraint or prohibition issued by any federal or
state banking or other regulatory authority or court of competent
jurisdiction shall prohibit the consummation of the transactions contemplated
hereby.
9.6 OFFICERS' CERTIFICATE OF FULFILLMENT OF CONDITIONS. Purchasers shall
have furnished Sellers with such certificates, instruments or other documents in
the name or on behalf of DST, executed by appropriate officers of DST or others,
including, without limitation, certificates or correspondence of governmental
agencies or authorities or non-governmental third parties, to evidence
fulfillment of the conditions set forth in this ARTICLE 9 as Sellers may
reasonably request; provided, however, that any such certificate, instrument or
other document so requested by Sellers shall be of a type that is customary in
transactions similar to the transactions contemplated hereby.
9.7 ADVERSE CHANGES. No event or events shall have occurred since September
30, 2000 that, individually or in the aggregate, have had or would reasonably be
expected to have a Material Adverse Effect on the Purchasers.
9.8 OTHER AGREEMENTS. All agreements described in ARTICLE 7 shall have been
executed and delivered.
ARTICLE 10
CLOSINGS
10.1 BOTH CLOSINGS. Unless this Agreement shall have been terminated or
abandoned pursuant to the provisions of ARTICLE 11 hereof, a closing of the
transfer of the Fleet LP Interests (other than the Fleet Residual Interest) and
all of the Fleet GP Interests as described in SECTION 2.1 (the "INITIAL
CLOSING") shall be held concurrently with the Initial FCTC Closing on a mutually
acceptable date not later than the fifteenth business day after receipt of all
required regulatory approvals and consents described in EXHIBITS 3.3. and 4.3,
or on such other date (the "INITIAL CLOSING DATE") mutually agreed upon by the
parties; PROVIDED, that the parties hereto shall use reasonable efforts to cause
the Initial Closing to occur on or before December 31, 2000. The Initial Closing
shall take place at such place or places as the parties shall mutually
designate. A closing of the transfer of the Fleet Residual Interest as described
in SECTION 2.1 (the "FINAL CLOSING") shall be held on the date for payment by
DST of the Final Deferred Payment pursuant to SECTION 2.2(f) or on such other
date (the "FINAL CLOSING DATE") mutually agreed upon by the parties. The Initial
Closing, the Initial FCTC Closing and the Final Closing are collectively
referred to as "Closings". The Initial Closing Date and the Final Closing Date
are collectively referred to as "Closing Dates".
10.2 Deliveries at Closings.
(a) At each Closing, Sellers shall (i) sell, transfer and assign to
Purchasers the Sellers' Interests required to be transferred pursuant to
SECTION 2.1 by executing and
14
delivering appropriate written instruments of conveyance providing for the
sale, transfer and assignment of such interests to Purchasers, including
warranties of title contained in SECTION 3.3 and (ii) execute and deliver
all other documents required by this Agreement to be executed and delivered
by Sellers at each Closing.
(b) At each Closing, the Purchasers shall (i) pay the portion of the
Purchase Price required to be paid pursuant to SECTION 2.2 and (ii) execute
and deliver all documents required by this Agreement to be executed and
delivered by Purchasers at each Closing.
10.3 FURTHER ASSURANCES. From time to time after each Closing, at
Purchasers' request and without further consideration from Purchasers, Sellers
shall execute and deliver such other instruments of conveyance and transfer and
take such other action as Purchasers reasonably may require to convey, transfer
to and vest in Purchasers and to put Purchasers in possession of the Sellers'
Interests in accordance with the terms of this Agreement.
10.4 LEGAL ACTIONS. If, prior to either Closing Date, any action or
proceeding shall have been instituted by any third party before any court or
governmental agency to restrain or prohibit this Agreement or the consummation
of the transactions contemplated herein, the Closing shall be adjourned at the
option of any party hereto for a period of up to ninety (90) days. If, at the
end of such 90-day period, the action or proceeding shall not have been
favorably resolved, any party hereto may, by written notice thereof to the other
party or parties, terminate its obligations hereunder.
ARTICLE 11
TERMINATION AND ABANDONMENT
11.1 METHODS OF TERMINATION. This Agreement may be terminated and the
transactions herein contemplated may be abandoned at any time prior to the
Initial Closing (but not thereafter):
(a) by mutual written consent of the parties hereto;
(b) by Sellers or Purchasers (i) thirty (30) days after the date upon
which any request or application for a required regulatory approval,
authorization, consent or order from any federal or state banking or other
regulatory authority or agency necessary for both the transactions
contemplated hereby and the transactions contemplated by the FCTC Sale
Agreement shall have been denied, unless within the thirty (30) day period
following such denial a petition for rehearing or an amended application
has been filed with such governmental regulatory authority or agency;
PROVIDED, HOWEVER, that no party shall have the right to terminate this
Agreement pursuant to this SECTION 11.1(b) if such denial shall be due to
the failure of the party seeking to terminate this Agreement to perform or
observe in any material respects the covenants and agreements of such party
set forth herein, or (ii) if any federal or state banking or other
regulatory authority or agency, or court of competent jurisdiction, shall
have issued a final and non-appealable order, injunction or other legal
restraint or prohibition preventing the consummation of the transactions
contemplated hereby;
15
(c) by Sellers or Purchasers (provided that the terminating party is
not then in material breach of any representation, warranty, covenant or
other agreement contained herein), in the event of a material breach by the
other party of any representation, warranty, covenant or other agreement
contained herein, which breach is not cured after thirty (30) days written
notice thereof is given to the party committing such breach;
(d) by Sellers or Purchasers for any reason or no reason if the
Initial Closing has not occurred on or before June 30, 2001; or
(e) by Purchasers pursuant to SECTION 7.9 hereof.
11.2 PROCEDURE UPON TERMINATION. In the event of termination and
abandonment pursuant to SECTION 11.1 hereof, this Agreement shall terminate and
shall be abandoned, without further action by any of the parties hereto and
shall be null and void and of no further force and effect (other than SECTION
7.1 hereof, which shall remain in full force and effect). If this Agreement is
terminated as provided herein:
(a) each party will upon request redeliver all documents and other
materials of any other party relating to the transactions contemplated
hereby, whether so obtained before or after the execution hereof, to the
party furnishing the same;
(b) no party hereto shall have any liability or further obligation to
any other party to this Agreement, except any liability under SECTION 7.1
and in the event of a willful breach by either party of any representation,
warranty, covenant or agreement contained in this Agreement, in which case,
the breaching party shall remain liable for any and all damages, costs and
expenses, including all reasonable attorneys' fees, sustained or incurred
by the non-breaching party as a result thereof or in connection therewith
or with the enforcement of its rights hereunder; and
(c) each party shall bear its own expenses.
ARTICLE 12
INDEMNIFICATION
12.1 INDEMNITY BY SELLERS. (a) Subject in all cases to Section 7.9 hereof,
Sellers agree to jointly and severally indemnify, Purchasers, and their
Affiliates, employees, officers, directors, controlling persons, successors and
assigns, harmless from and with respect to any and all claims, liabilities,
losses, damages, diminution in value, costs and expenses, including without
limitation the reasonable fees and disbursements of counsel and expert
witnesses, net of insurance proceeds received (collectively, the "PURCHASERS'
LOSSES"), related to or arising directly or indirectly out of (i) any
inaccuracies in any representation or warranty made by Sellers in this
Agreement, , or (ii) any failure or breach by Sellers of any covenant,
obligation, or undertaking made by Sellers in this Agreement; PROVIDED, HOWEVER,
that Sellers responsibility to indemnify DST for Purchasers' Losses resulting
from breach of the first sentence of SECTION 3.1(c) and SECTION 3.2(iii) shall
be limited to one third (1/3) of such losses.
[*]
16
12.2 INDEMNITY BY PURCHASERS. Subject in all cases to Section 7.9 hereof,
Purchasers agree to jointly and severally indemnify and hold Sellers, and their
Affiliates, employees, officers, directors, controlling persons, successors and
assigns, harmless from and with respect to any and all claims, liabilities,
losses, damages, diminution in value, costs and expenses, including without
limitation the reasonable fees and disbursements of counsel and expert
witnesses, net of insurance proceeds received (collectively, the "SELLERS'
LOSSES"), related to or arising directly or indirectly out of (i) any
inaccuracies in any representation or warranty made by Purchasers in this
Agreement, or (ii) any failure or breach by Purchasers of any covenant,
obligation, or undertaking made by Purchasers in this Agreement.
12.3 Claims.
(a) Any party seeking indemnification hereunder (the "INDEMNIFIED
PARTY") shall promptly notify the party hereto obligated to provide
indemnification hereunder (the "INDEMNIFYING PARTY") of any action, suit,
proceeding, demand or breach (a "CLAIM") with respect to which the
Indemnified Party claims indemnification hereunder, provided that failure
of the Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations under this ARTICLE 12 except to the
extent, if at all, that such Indemnifying Party shall have been prejudiced
thereby. If such Claim relates to any action, suit, proceeding or demand
instituted against the Indemnified Party by a third party (a "THIRD PARTY
CLAIM"), upon receipt of such notice from the Indemnified Party the
Indemnifying Party shall be entitled to participate in the defense of such
Third Party Claim, and if and only if each of the following conditions is
satisfied, the Indemnifying Party may assume the defense of such Third
Party Claim, and in the case of such an assumption the Indemnifying Party
shall have the authority to negotiate, compromise and settle such Third
Party Claim: (i) the Indemnifying Party confirms in writing that it is
obligated hereunder to indemnify the Indemnified Party with respect to such
Third Party Claim; and (ii) there is no conflict of interest which would
make separate representation by the Indemnified Party's own counsel
advisable. The Indemnified Party shall retain the right to employ its own
counsel and to participate in the defense of any Third Party Claim, the
defense of which has been assumed by the Indemnifying Party pursuant
hereto, but the Indemnified Party shall bear and shall be solely
responsible for its own costs and expenses in connection with such
participation. The Indemnifying Party shall not, without the prior written
consent of the Indemnified Party, settle or compromise any claim or consent
to the entry of any judgment that does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to the Indemnified
Party a release from all liability in respect of such claim.
(b) In the event of any Claim under SECTION 12.1 or 12.2 hereof, the
Indemnified Party shall advise the Indemnifying Party in writing of the
amount and circumstances surrounding such Claim. With respect to liquidated
Claims, if within thirty (30) days the Indemnifying Party has not contested
such Claim in writing, the Indemnifying Party will pay the full amount
thereof within ten (10) days after the expiration of such period.
12.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Sellers and DST hereunder shall survive all Closings.
17
ARTICLE 13
GENERAL; MISCELLANEOUS
13.1 EXPENSES. Except as expressly set forth in this Agreement, all
expenses of the preparation, execution and consummation of this Agreement and of
the transactions contemplated hereby, including, without limitation, attorneys',
accountants' and outside advisers' fees and disbursements, shall be borne by the
party incurring such expenses.
13.2 NOTICES. All notices, demands and other communications hereunder shall
be in writing or by written telecommunication, and shall be deemed to have been
duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid or if sent by overnight courier or sent by
written telecommunication, as follows:
If to Sellers:
Fleet Bank, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
and
Xxxxxxx X. Xxxxxxxx, Esq.
If to the Purchasers:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
13.3 GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware without regard to
its conflict of laws rules.
13.4 CONSENT TO JURISDICTION. Each of the parties hereto agrees that any
suit, action or proceeding instituted against such party under or in connection
with this Agreement shall be brought, non-exclusively in a court of competent
jurisdiction of the State of Delaware. By execution hereof, each party hereto
irrevocably waives any objection to, and any right of immunity on the grounds
of, improper venue, the convenience of the forum, the personal jurisdiction of
such courts or the execution of judgments resulting therefrom. Each party hereto
hereby irrevocably accepts and submits to the non-exclusive jurisdiction of such
courts in any such action, suit or proceeding.
18
13.5 SECTIONS AND SECTION HEADINGS. The headings of sections and
subsections are for reference only and shall not limit or control the meaning
thereof.
13.6 ASSIGNS. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors and permitted
assigns. Neither this Agreement nor the obligations of any party hereunder or
thereunder shall be assignable or transferable (except by operation of law in
connection with a merger or similar corporate reorganization) by such party
without the prior written consent of the other party hereto or thereto.
13.7 NO IMPLIED RIGHTS OR REMEDIES. Except as otherwise expressly provided
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or to give any Person, except the parties and their respective
successors, if any, hereto, any rights or remedies under or by reason of this
Agreement.
13.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
13.9 CONSTRUCTION. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rule
of strict construction will be applied against any party.
13.10 SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement or any related agreement shall not affect the other
provisions hereof or thereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision was omitted.
13.11 WAIVER OF CERTAIN DAMAGES. All of the parties hereto to the fullest
extent permitted by law irrevocably waive any rights they may have to punitive,
special, exemplary or consequential damages based upon or arising out of this
Agreement or any course of conduct, course of dealing, statements or actions of
any of them relating thereto, except that the foregoing waiver shall not apply
to any breach of any representation or warranty contained in SECTIONS 3.2(i),
3.2(ii) or 3.3.
13.12 ENTIRE AGREEMENT. This Agreement (including the Exhibits hereto)
contains the entire understanding of the parties hereto and thereto, supersedes
all prior agreements and understandings relating to the subject matter hereof
and thereof and shall not be amended except by a written instrument hereafter
signed by all of the parties hereto or thereto, as applicable. No waiver of any
provision of this Agreement shall be effective unless evidenced by a written
instrument signed by the waiving party. Each of the parties hereto further
acknowledge and agree that, in entering into this Agreement they have not in any
way relied upon any oral or written agreements, statements, promises,
information, arrangements, understandings, representations or warranties,
express or implied, not specifically set forth in this Agreement.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first hereinabove written.
SELLERS:
FLEET NATIONAL BANK, a national banking
association
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice Chairman
BANCBOSTON SERVICES, INC., a Massachusetts
corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice Chairman
PURCHASERS:
DST SYSTEMS, INC. a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: President/CEO
DST EQUISERVE, INC., a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: President
20
EXHIBIT A
DESIGNATED CUSTOMERS
CLIENT LOCATION CLAUSE REVENUE*
[*] [*] [*] [*]
* Revenue amounts based on the period from November 1999 to October 2000.
21
APPENDIX A
CALCULATION OF RECURRING REVENUES
For the year ended
December 31, 1999
(in thousands)
[*]
22
ANNEX B
DEFERRED PAYMENT CALCULATION EXAMPLES
[*]
23
Exhibit 3.2 to
Agreement for Purchase and Sale
of Partnership Interests
This constitutes Exhibit 3.2 to the Agreement for Purchase and Sale of
Partnership Interests made as of the 7th day of December, 2000 (the
"Agreement"), by and among Fleet National Bank, a national banking association
("Fleet"), BancBoston Services, Inc., a Massachusetts corporation ("Fleet Sub"),
DST Systems, Inc., a Delaware corporation ("Purchaser"), and DST EquiServe,
Inc., a Delaware corporation ("DST Sub"). The information set forth in this
exhibit is incorporated by reference into the Agreement to the same extent as if
set forth in full in the Agreement. All terms used but not defined in this
exhibit shall have the meanings ascribed thereto in the Agreement.
Fleet or an Affiliate is a party to contracts with customers under which the
customer may be entitled to notice of the transactions contemplated by the
Agreement or the customer may have the right to consent to or otherwise approve
the transactions contemplated by the Agreement. Set forth below are the
customers of Fleet or an Affiliate that may be entitled either to notice of, or
to consent to, such transactions.
[*]
24
Exhibit 3.3 to Agreement
for Purchase and Sale
of Partnership Interests
This constitutes Exhibit 3.3 to the Agreement for Purchase and Sale of
Partnership Interests made as of the 7th day of December, 2000 (the
"Agreement"), by and among Fleet National Bank, a national banking association
("Fleet"), BancBoston Services, Inc., a Massachusetts corporation ("Fleet Sub"),
DST Systems, Inc., a Delaware corporation ("Purchaser"), and DST EquiServe,
Inc., a Delaware corporation ("DST Sub"). The information set forth in this
exhibit is incorporated by reference into the Agreement to the same extent as if
set forth in full in the Agreement. All terms used but not defined in this
exhibit shall have the meanings ascribed thereto in the Agreement.
The ability of Fleet and Fleet Sub to sell, transfer, assign and deliver the
limited and general partnership interests in the Partnership as provided in
Section 3.3 of the Agreement is subject to the restrictions on transferability
set forth in the Partnership Agreement including, without limitation, the
provisions of Article 7 and Article 8 of the Partnership Agreement.
Fleet, on behalf of itself and its Affiliates, may be required to file with
respect to the transactions contemplated under the Agreement under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act and await consummation of the
transactions so contemplated until the expiration (or waiver) of the waiting
periods provided for therein.
In connection with the sale of the partnership interests in EquiServe by Fleet
and Fleet Sub and by subsidiaries and Affiliates of Bank One Corporation, notice
may be required to the Office of the Comptroller of the Currency in connection
with the change in bank control of EquiServe Trust Company.
25
EXHIBIT 4.3
This constitutes Exhibit 4.3 to the Agreement for Purchase and Sale of
Partnership Interests made as of the 7th day of December, 2000 (the
"Agreement"), by and among Fleet National Bank, a national banking association
("Fleet"), BancBoston Services, Inc., a Massachusetts corporation ("Fleet Sub"),
DST Systems, Inc., a Delaware corporation ("Purchaser"), and DST EquiServe,
Inc., a Delaware corporation ("DST Sub"). The information set forth in this
exhibit is incorporated by reference into the Agreement to the same extent as if
set forth in full in the Agreement. All terms used but not defined in this
exhibit shall have the meanings ascribed thereto in the Agreement.
DST, on behalf of itself and its Affiliates, may be required to file with
respect to the transactions contemplated under the Agreement under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act and await consummation of the
transactions so contemplated until the expiration (or waiver) of the waiting
periods provided for therein.
DST, on behalf of itself, its Affiliates and any shareholder owning more than
25% of its capital stock, may be required to file a Notice of Change in Bank
Control with the Comptroller of the Currency with respect to the transactions
contemplated under the Agreement and await consummation of the transactions so
contemplated until the expiration (or waiver) of the review and waiting periods
(including extensions thereof) under the Federal Deposit Insurance Act and the
regulations of the Comptroller of the Currency.
26
