EXHIBIT 4(b)
STOCK PURCHASE AGREEMENT
Introduction
THIS AGREEMENT by and between Xxxxx X. Xxxxxxx, 00 Xxxxxxxx Xxxx Xxxx,
Xxxxxxxxxx, XX 00000 (the "Seller") and Fleet National Bank, a national banking
association, Xxx Xxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 (the "Buyer") is dated as
of January 15, 1997.
Recitals
The Seller is the owner of 17,500 shares (the "Purchased Shares") of the
issued and outstanding common stock of the Providence Group Investment Advisory
Company, a Rhode Island corporation ("TPG"). Upon the terms and conditions set
forth in this Agreement, the Seller desires to sell, and the Buyer desires to
Purchase, the Purchased Shares.
Agreements
The parties have mutually agreed as follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions set
forth in this Agreement, the Seller hereby sells and transfers to the Buyer the
Purchased Shares and the Buyer hereby purchases from the Seller the Purchased
Shares, in exchange for the delivery by the Buyer to the Seller of the
Convertible Promissory Note (the "Note") of the Buyer in the form of such Note
attached hereto as Exhibit I.
2. Representations and Warranties of Seller. The Seller represents and
warrants to the Buyer as follows:
2.1. Ownership of Purchased Shares. The Seller owns all of the
Purchased Shares, free and clear of all liens, encumbrances,
security interests, claims and restrictions. Other than the
shares of common stock of TPG owned by Xxxxx Xxxxxxx
("Laurans") and the preferred stock of TPG owned by the Buyer,
the Purchased Shares represent all of the outstanding shares
of stock of TPG. The Seller has full power and authority to
transfer the Purchased Shares to the Buyer. On the Closing
Date, the Buyer will acquire title to the Purchased Shares
free and clear of any restrictions, liens and encumbrances
whatsoever. There are no rights, subscriptions, warrants,
options, conversion rights or other arrangements of any kind
outstanding to purchase or otherwise acquire any of the
Purchased Shares, except as otherwise provided in an
Investment Agreement by and among TPG, certain of its
shareholders and Fleet Financial Group, Inc. ("FFG"), dated as
of September 19,
1994, as amended. The Seller has not granted any right of
first refusal or other right to restrain the transfer of the
Purchased Shares.
2.2. Unauthorized Action. The Seller in his capacity as an officer,
director and stockholder of TPG has not taken any action or
omitted to take any action that would or could incur any
material liability or obligation on behalf of TPG that has not
been disclosed to the Buyer prior to the date hereof.
2.3. Reports and Financial Statements; Undisclosed Liabilities. The
Buyer has heretofore been furnished with complete and correct
copies of the following: the audited balance sheet of TPG as
of December 31, 1995 and the related audited statements of
earnings, retained earnings and cash flows for the year then
ended, as well as the unaudited balance sheet of TPG as of
September 30, 1996 (the "Balance Sheet Date") and the related
unaudited statements of earnings, retained earnings and cash
flows for the nine-month period then ended, and all of the
notes to all such statements, each of which is attached hereto
as Schedule 2.3 (collectively, the "Financial Statements").
Each of the Financial Statements were prepared in accordance
with generally accepted accounting principles applied on a
basis consistent with prior periods; each of the balance
sheets included in such Financial Statements fairly presents
the financial condition of TPG as of the close of business on
the date thereof; and each of the statements of earnings
included in such Financial Statements fairly presents the
results of operations of TPG for the period then ended. TPG
has no liabilities or obligations of any nature, whether
absolute, accrued, contingent or otherwise, which are not
fully reflected or reserved against in the Financial
Statements, except for liabilities that may have arisen in the
ordinary and usual course of business and consistent with past
practice and that individually or in the aggregate do not have
and could not be reasonably expected to have a material
adverse effect on TPG.
2.4. Compliance with Laws. TPG is in compliance in all material
respects with, and is not in any material respect in default
under or in violation of, and the operation of the business of
TPG does not contravene in any material respect, any statute,
law (including environmental or employment laws), ordinance,
decree, order, rule or regulation of any governmental body
applicable to TPG or TPG's business, including, without
limitation, rules and regulations of the Securities and
Exchange Commission and the Securities Division of the Rhode
Island Department of Business Regulation.
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2.5. No Conflicting Obligations. The execution and delivery of this
Agreement and the performance of the transactions contemplated
hereby by the Seller will not conflict with any understanding
or agreement to which the Seller is a party or by which the
Seller is bound.
3. Representations and Warranties of Buyer. The Buyer represents and
warrants to the Seller as follows:
3.1. Authorization. The execution and delivery of this Agreement
and the issuance, execution and delivery of the Note (together
with this Agreement, the "Documents") and the performance by
the Buyer of its obligations thereunder have been duly
authorized by all requisite corporate action and each of the
Documents constitutes the duly authorized and binding
obligation of the Buyer, enforceable against the Buyer in
accordance with its terms.
3.2. No Conflict. Neither the execution and delivery of the
Documents by the Buyer nor the performance by the Buyer of its
obligations thereunder conflict with any provision of the
Buyer's charter or by-laws or with any agreement, contract or
commitment, to which the Buyer is a party or by which the
Buyer's property is bound, or any federal, state or local law,
ordinance or regulation.
3.3. Regulatory Approvals. Buyer has obtained all regulatory
approvals, if any, required for the Buyer to execute and
deliver each of the Documents and to perform its obligations
thereunder.
4. Closing. The closing of the transactions contemplated by this Agreement
shall occur simultaneously with the execution and delivery hereof, at the
offices of Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX.
4.1. Seller's Deliveries at Closing. At the closing, the Seller
will deliver to the Buyer the following, all documents to be
in form and substance satisfactory to the Buyer and the
Buyer's counsel:
4.1.1. A certificate or certificates representing the
Purchased Shares, registered in the name of the Seller,
duly endorsed by the Seller for transfer to the Buyer
or accompanied by an assignment of the Purchased Shares
to the Buyer duly executed by the Seller;
4.2. Buyer's Deliveries at Closing. At the closing, the Buyer will
deliver to the Seller the following, all documents to be in
form and substance satisfactory to Seller and Seller's
counsel:
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4.2.1. The Note, duly executed by an authorized officer of the
Buyer, the Joinder to which shall have been duly
executed by an authorized officer of Fleet Financial
Group, Inc. ("FFG").
4.2.2. Corporate resolutions of the Buyer authorizing the
transactions provided for in this Agreement.
4.2.3. Corporate resolutions of FFG authorizing FFG to execute
and deliver the Joinder and the transactions
contemplated thereby, including, without limitation,
the issuance of the shares of the FFG Common Stock to
be issued upon conversion of the Note.
5. No Broker. Each of the parties represents and warrants that such party
has dealt with no broker or finder in connection with any of the transactions
contemplated by this Agreement, and, insofar as each party knows, no broker or
other person is entitled to any commission or finder's fee in connection with
any such transaction.
6. Fees and Expenses. Each party shall pay all fees and expenses incurred
by it in connection with this Agreement and the consummation of the transactions
contemplated herein.
7. Entire Agreement; Modification; Waiver. This Agreement constitutes the
entire agreement between the parties pertaining to the subject matter contained
in it and supersedes all prior and contemporaneous agreements, representations
and understandings of the parties regarding such subject matter. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by all of the parties and no waiver of any provision of this Agreement
shall be binding unless signed by the party giving such waiver.
8. Further Assurances. Each party shall from time to time execute and
deliver such additional documents and instruments and take such additional
actions as any other party may reasonably require in order to carry out the
transactions contemplated by this Agreement.
9. Successors and Assigns. This Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
10. Survival. All representations, warranties, covenants and agreements of
the parties contained in this Agreement or the Note shall survive the Closing,
provided, however, that neither party shall have any liability for the breach of
any representation or warranty made herein unless such party shall have received
written notice of such breach from the other party, specifying such breach in
reasonable detail, prior to the second anniversary date of this Agreement.
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11. Notices. All notices, requests, demands or communications required or
permitted to be given or made under this Agreement or the Note must be in
writing and shall be deemed to be received (i) if delivered in person, when
actually delivered, (ii) if sent by confirmed telecopy, with a copy of such
telecopy is sent by registered or certified mail, (iii) if delivered by
overnight courier, when actually delivered or (iv) if delivered by mail, when
five business days shall have elapsed after the same shall have been deposited
in the United States mails, postage prepaid and registered or certified, and in
the case of each of (i) through (iv), when addressed as follows:
11.1. If to the Seller, to the Seller at his address as first set
forth above, or at such other address as shall have been
specified by the Seller to the Buyer in accordance with the
provisions of this section; and
11.2. If to the Buyer, to the Buyer c/o Fleet Financial Group, Xxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Secretary, or at such other address as shall have been
specified by the Buyer to the Seller in accordance with the
provisions of this section.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without giving
effect any choice or contract of law provision or rule that would cause the
application of the substantive laws of any other state.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Title: Senior Vice President
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
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EXHIBIT I
CONVERTIBLE PROMISSORY NOTE
$2,356,000 Boston, Massachusetts
As of January 15, 1997
FOR VALUE RECEIVED, the undersigned, Fleet National Bank, a national
banking association (the "Bank"), promises to pay to Xxxxx X. Xxxxxxx, an
individual resident at 00 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Laurans;"
together with any subsequent holder hereof, the "Holder") or order on January
15, 2012, the principal sum of two million three hundred fifty six thousand
dollars ($2,356,000), together with interest in arrears from the date hereof on
the principal amount from time to time unpaid at a per annum rate of seven
percent (7%). The Bank shall pay such interest quarterly on the 15th day of
April, July, October and January in each year commencing April 15, 1997, except
that all accrued but unpaid interest shall be paid at the stated or accelerated
maturity date hereof.
This Convertible Promissory Note (the "Note") may not be prepaid in whole
or in part at any time.
All payments hereunder shall be made to the Holder at the address first
shown above or at such other address as the Holder may designate to the Bank
from time to time in writing.
In the event of any of the following (each a "Default") the Holder may by
notice in writing to the Bank declare the entire unpaid principal of this Note,
together with accrued interest thereon, immediately due and payable: (a) the
Bank fails to make any payment of interest on this Note as provided herein, and
such failure continues for a period of 15 days, (b) there is a breach of any of
the Exhibit Obligations (as defined below) or (c) the Bank is the subject of any
receivership proceeding initiated by any state or federal bank regulatory
authority or files or has filed against it any petition under any bankruptcy or
insolvency law or for the appointment of a receiver or makes a general
assignment for the benefit of creditors. No failure by the Holder to take action
with respect to any such Default shall affect the Holder's subsequent rights to
take action with respect to the same or any other Default. In the event of
Default, the Bank agrees to pay all reasonable costs incurred by the Holder in
collecting amounts due or otherwise enforcing Holder's other rights hereunder,
including reasonable attorneys' fees.
This Note is unsecured and, if so requested by the Bank, the Holder hereof
agrees to execute and deliver any instruments which the Bank may reasonably
require in order to subordinate this Note to any other indebtedness of the Bank
to unaffiliated third-parties.
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Holder shall have the rights and privileges set forth in Exhibits A and B
annexed hereto and incorporated herein, on the terms and conditions thereof, and
all obligations under Exhibits A and B which are owed to or benefit the Holder
(the "Exhibit Obligations") shall be considered as obligations owed the Holder
by the Bank under this Convertible Note. In addition, the Holder shall have
recourse to Fleet Financial Group, Inc. ("FFG") under its Joinder to this Note
on account of any breach of the Exhibit Obligations by FFG or the Bank.
Capitalized terms used in Exhibits A and B and not otherwise defined therein
shall have the meanings given to them in this Note.
The Bank and each guarantor or endorser of this Note hereby severally
expressly waives presentment, demand, notice of non-payment and protest, and all
other notices or demands required by law, except as expressly provided in this
Note. THE BANK HEREBY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH
RESPECT TO THIS NOTE.
The rights and obligations of the Bank and all provisions hereof shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts except to the extent that such laws are superseded by federal
enactments.
IN WITNESS WHEREOF, the undersigned Bank has caused this Note to be
executed under its corporate seal by its duly authorized officer as of the date
first above written.
FLEET NATIONAL BANK
By:
--------------------------------
Name:
[Seal] Title:
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Witness
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JOINDER
The undersigned hereby joins in the execution and delivery of this
Convertible Promissory Note for the purposes of assuming and guaranteeing,
severally and unconditionally, the obligations described in Exhibit A and B to
this Note, but otherwise without recourse under this Note.
FLEET NATIONAL BANK
By:
--------------------------------
Name:
Title:
Hereunto duly authorized
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Witness
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Exhibit A
CONVERSION RIGHTS
1. Right to Convert. Subject to the terms and conditions contained herein,
the Holder of the Note to which this Exhibit A is annexed shall have the right
at any time on or after the first anniversary date of the Note to convert all or
any part of the principal amount of the Note outstanding on the date of
conversion into the number of shares (the "Shares") of common stock of Fleet
Financial Group, Inc. ("FFG"), par value $.01 per share (the "Common Stock")
equal to the amount so to be converted divided by $50.575.
2. Adjustment to Conversion Price. The conversion price shall be
proportionally adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from any subdivision or consolidation of shares
or other capital adjustment, the payment of a stock dividend or any other
increase or decrease in such shares effected without receipt of consideration by
FFG to the same extent as any such change would result in a change in the
exercise price of options issued under FFG's Amended and Restated 1992 Stock
Option and Restricted Stock Plan (as from time to time in effect) or any
successor plan of similar general applicability.
3. Exercise of Conversion Rights. The Holder shall exercise the Holder's
rights to convert as described herein by surrendering the Note to the Bank, at
the offices of the Bank at Xxx Xxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 or at such
other address as the Bank has provided to the Holder in writing. The Note shall
be accompanied by written notice stating the portion of the Note which the
Holder intends to convert, which if less than the amount of all outstanding
amounts under the Note shall be no less than $100,000. No fractional shares or
script representing fractional shares will be issued upon any conversion, but an
adjustment in cash will be made in respect of any fraction of a share which
would otherwise be issuable upon surrender of the Note for conversion. If any
such conversion shall be for less than the full principal amount of the Note
then outstanding, the Bank will forthwith issue to the Holder a new Note in the
principal amount remaining after such conversion, dated the date hereof, and
otherwise upon all of the terms and conditions and in the form hereof.
The Note shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of the Note for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holder, as Holder of the Note, shall cease to the extent of the portion of the
Note so converted and the Holder shall be treated for all purposes as the record
holder of the Common Stock issuable upon conversion of the Note. As promptly as
practicable on or after the date of any conversion in full or in part of the
Note, but in no event later than five business days thereafter, FFG shall
contribute the Shares to be issued to the Holder to the Bank and the Bank shall
deliver to the Holder, or as the Holder may direct, a certificate or
certificates for the number of full shares of Common Stock issuable upon such
conversion together with (a) payment in lieu of any fraction of a share, as
hereinabove
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provided, (b) in the case of any partial conversion of the Note, a new Note or
Note as hereinabove provided and (c) interest through the date of conversion on
the principal amount converted.
4. Provisions Applicable in Connection with a Consolidation, Merger, Sale
of Assets or Reorganization of FFG. If Fleet is a party to any transaction (a
"Transaction"), including without limitation, a merger, consolidation, sale of
all or substantially all of FFG's assets or recapitalization of Common Stock, in
which the previously outstanding Common Stock shall be changed into or exchanged
for different securities of FFG or common stock or other securities of another
corporation or interests in a non-corporate entity or other property, including
cash, or any combination of any of the foregoing, provisions shall be made to
permit Holder to convert the Note in whole or in part prior to consummation of
such a transaction so as to entitle the Holder to receive, in exchange for the
Shares received on such conversion, such stock, other securities, cash or
property. If the Transaction does not qualify as a tax free reorganization under
Section 368 of the Internal Revenue Code, as tax free under Section 351 of the
Code, or as tax free under any successor provision or provisions (a "Tax Free
Reorganization"), any portion of the Note not converted prior to the Transaction
and outstanding after the Transaction shall not be convertible after the
Transaction. If the Transaction does qualify as a Tax Free Reorganization, after
giving effect to any conversion of a portion of the Note prior to the
Transaction, the Note shall be subject to the following provisions, unless the
Holder prior to the Transaction irrevocably elects in a writing delivered to the
Bank to forego any further conversion of the Note:
(i) The Bank shall make a reasonable determination of the consideration
(the "Consideration") which the Holder would have received if the Note had been
converted into Shares just prior to the Transaction and exchanged in the
Transaction. For this purpose, if the Holder could have elected what would be
received in the Transaction, the Consideration which could have been received
shall be determined by assuming that the Holder elected to receive the maximum
amount of the Consideration which would qualify as nonrecognition property
under the Code.
(ii) Promptly after the effective date of the Transaction, the Holder
shall deliver the Note to the Bank and, within five business days after the
Holder presents the Note to the Bank, the Bank shall:
(a) transfer to the Holder of the Note the recognition property
included in the Consideration, in complete payment and satisfaction of a
portion of the Note determined by multiplying the Note by a fraction the
numerator of which is the fair market value of such recognition property
determined as of the effective date of the Transaction and the denominator
of which is the fair market value of the Consideration as of such date,
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(b) pay the Holder interest through the effective date of the
Transaction on that portion of the Note paid under (ii)(a) above, and
(c) deliver to the Holder a new Note in the principal amount
remaining after the payment in (ii)(a) above, dated the date hereof, and
otherwise upon all of the terms and conditions and in the form hereof
except that it shall be convertible as provided in (iii) below.
(iii) The Note issued under (ii)(c) above shall be convertible into the
nonrecognition property included in the Consideration and shall after its
issuance be adjusted on terms and conditions equivalent to those specified in
this Exhibit A, including, with respect to any future Transaction, the
provisions of this Section 4.
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Exhibit B
REGISTRATION RIGHTS
1. FFG's Registration Obligations. On or before the first anniversary of
the date of the Note, FFG shall prepare and file and cause to become effective a
registration statement (the "Registration Statement") with the Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Securities Act") for the sale of the Shares of Common Stock to be
delivered to the Holder on conversion of Note. FFG shall prepare and file with
the SEC such amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective until all of such shares shall have been sold
pursuant to such Registration Statement.
2. Exception to Registration Requirements When Shares May Be Sold Under
Rule 144. Notwithstanding the provisions of Section 1 of this Exhibit B, FFG
shall not be obligated to file or to keep effective any such Registration
Statement for any time period during which the original holder of the Note is
eligible, or if such original Holder still held the note, would be eligible, to
sell all Shares issuable on conversion of the remaining outstanding principal
amount of the Note in a single transaction under Rule 144 without invoking Rule
144(e)(1)(ii) or (iii).
3. Miscellaneous. FFG shall reserve for issuance the maximum number of
shares issuable at any time on conversion of the entire outstanding principal
amount of the Note. Any Shares issued on conversion of the Note shall be duly
listed for trading on the New York Stock Exchange (or if different at any time,
any other securities exchange or national market system on which the shares of
FFG Common Stock are principally traded), subject to official notice of
issuance.
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