Exhibit 1(a)
FLEET FINANCIAL GROUP, INC.
Underwriting Agreement
New York, New York
[ Date ]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Fleet Financial Group, Inc., a Rhode Island corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), the principal amount of its debt securities
identified in Schedule I hereto (the "Debt Securities"), to be issued under
an indenture dated as of October 1, 1992, (the "Indenture") between the
Company and the trustee named in Schedule I hereto (the "Trustee"). If so
indicated on Schedule I hereto, the Company also proposes to issue warrants
(the "Warrants") to purchase the aggregate principal amount listed in
Schedule I hereto of the debt securities identified in Schedule I hereto
(the "Warrant Securities"). The Warrants, if any, are to be issued
pursuant to the Warrant Agreement listed in Schedule I hereto (the "Warrant
Agreement") between the Company and the Warrant Agent listed in Schedule I
hereto (the "Warrant Agent"). The Debt Securities and the Warrants, if
any, are hereinafter referred to as the "Purchased Securities". The
Purchased Securities and the Warrant Securities are referred to herein as
the "Securities". If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed
to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
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warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in
paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as
so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for
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the use of Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a
basic prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective.
The offering of the Securities is a Delayed Offering and,
accordingly, it is not necessary that any further information
with respect to the Securities and the offering thereof required
by the Act and the rules thereunder to be included in the Final
Prospectus have been included in an amendment to such
registration statement prior to the Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus
included in such registration statement relating to the
Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Pro-
spectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. If the Rule 434 Delivery
Alternative is used, the Company will also file the Rule 434 Term
Sheet in accordance with Rule 434. As filed, such Rule 434 Term
Sheet shall contain all the information required by Rule 434, and
except to the extent the Representatives shall agree in writing
to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein. Upon your request, but not without
your agreement, the Company will also file
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a Rule 462(b) Registration Statement in accordance with Rule
462(b).
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of such
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In
the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities and the offering
thereof. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain
all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
If the Rule 434 Delivery Alternative is used, the Company will
also file the Rule 434 Term Sheet in accordance with Rule 434.
As filed, such Rule 434 Term Sheet shall contain all the
information required by Rule 434, and except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
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latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
Upon your request, but not without your agreement, the Company
will also file a Rule 462(b) Registration Statement in accordance
with Rule 462(b).
.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final Pro-
spectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the
Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or 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; provided,
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however, that the Company makes no representations or warranties as to
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(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement, any post-effective
amendment or amendments thereto and any Rule 462(b) Registration
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Statement became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred
to in paragraph (a) above contained in the Registration Statement at
the Effective Date including, in the case of a Non-Delayed Offering,
any Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case of a Non-
Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the Registration Statement
at the Effective Date. If the Rule 434 Delivery Alternative is used,
such term shall also include the Basic Prospectus and the Rule 434
Term Sheet, taken together. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended.
Such term shall include any Rule 430A Information and Rule 434
Information deemed to be included therein at the Effective Date as
provided by Rule 430A and Rule 434, respectively. "Rule 415",
"Rule 424", "Rule 430A", "Rule 434", "Rule 462(b)" and "Regulation S-
K" refer to such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. "Rule 434
Delivery Alternative" shall mean the delivery alternative permitted by
Rule 434. "Rule 434 Information" shall mean any information to be
included in a Rule 434 Term Sheet. "Rule 434 Term Sheet" shall mean
the term sheet or abbreviated term sheet delivered by the Underwriters
to investors and filed by the Company with the Commission pursuant to
Rule 434. "Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the final Delayed Offering covered by the
initial
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Registration Statement. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. A
"Non-Delayed Offering" shall mean an offering of securities which is
intended to commence promptly after the effective date of a regis-
tration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect
to the securities so offered must be included in such registration
statement at the effective date thereof. A "Delayed Offering" shall
mean an offering of securities pursuant to Rule 415 which does not
commence promptly after the effective date of a registration
statement, with the result that only information required pursuant to
Rule 415 need be included in such registration statement at the
effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and conditions and
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in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of the Securities
set forth opposite such Underwriter's name in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the
Underwriters are herein sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery Contracts
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as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes
therein as the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor, the
Company will pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth in Schedule I
hereto of the principal amount of the Securities for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with institu-
tional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and
charitable institutions. The Company will enter into Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not
less than the minimum principal amount set forth in Schedule I hereto and
the aggregate principal amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Secu-
rities to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same proportion
to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears
to the aggregate principal amount set forth in Schedule II hereto, except
to the extent that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company in writing; provided,
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however, that the total principal amount of Securities to be purchased by
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all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment for the
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Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such
date and time of delivery and payment for the Underwriters' Securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities
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shall be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of
the Company by either certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in next day funds or in
Federal or similar same day funds as set forth in Schedule I. Delivery of
the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at
the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York,
New York, not later than 1:00 p.m. on the business day prior to the Closing
Date.
4. Agreements. The Company agrees with the several Underwriters
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that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement or Rule 462(b)
Registration Statement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. If the Rule 434 Delivery
Alternative is used, the Company will also cause the Rule 434 Term
Sheet, properly completed, to be filed with the Commission pursuant to
Rule 434 within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. Upon your
request, the Company will cause the Rule 462(b) Registration
Statement, properly completed, to be filed with the Commission
pursuant to Rule 462(b) and will provide evidence satisfactory to
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the Representatives of such filing. The Company will promptly advise
the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, any supplement
thereto, any Rule 434 Term Sheet or any Rule 462(b) Registration
Statement shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iv) of any request by the Commission
for any amendment of the Registration Statement or supplement to the
Final Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effec-
tiveness of the Registration Statement or the institution or threaten-
ing of any proceeding for that purpose and (vi) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhib
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its thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of
any Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or announce the offering of, any senior debt
securities.
(g) The Company confirms as of the date hereof that it has
complied with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
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Cuba, and the Company further agrees that if it commences engaging in
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business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or
with any person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such business
or change, as appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Underwriters. The
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obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not
later
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than (i) 6:00 p.m. New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior
to 3:00 p.m. New York City time on such date or (ii) 12:00 Noon on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 p.m. New York
City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b), or if the
filing of the Rule 434 Term Sheet is required pursuant to Rule 434,
the Rule 434 Term Sheet will be filed in the manner and within the
time period required by Rule 434; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of the Company and Fleet National Bank ("Fleet
Bank-RI") and any other subsidiary or subsidiaries which the
Representatives may reasonably request (individually a
"Subsidiary" and collectively the "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 Final 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 Fleet
Bank-RI or any such other Subsidiaries 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;
(ii) all the outstanding shares of the capital stock of
Fleet Bank-RI and any such other Subsidiaries have been duly and
validly authorized and issued and are fully paid and (except as
provided in 12 U.S.C. Sec. 55) nonassessable, and, except as
otherwise set forth or incorporated by reference in the Final
Prospectus, all outstanding
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shares of capital stock of Fleet Bank-RI and such other
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;
(iii) the Purchased Securities conform to the description
thereof contained in the Final Prospectus; and, if the Securities
are to be listed on any stock exchange, authorization therefor
has been given, subject to official notice of issuance and evi-
dence of satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting
documents with respect to the Securities with such stock exchange
and such counsel has no reason to believe that the Securities
will not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iv) the Indenture and the Warrant Agreement, if any, have
been duly authorized, executed and delivered; the Indenture has
been duly qualified under the Trust Indenture Act; and the
Indenture and the Warrant Agreement, if any, constitute legal,
valid and binding instruments enforceable against the Company in
accordance with their respective terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganiza-
tion, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to the
availability of equitable remedies which are discretionary with
the courts); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions
of the Indenture and delivered pursuant to the Warrant Agreement,
in the case of Warrant Securities, and delivered to and paid for
by the Underwriters pursuant to this Agreement, in the case of
the Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(v) to the best knowledge of such counsel, there is no
pending or 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
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Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(vi) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b), or if
the Rule 434 Delivery Alternative was used, the required filing
of the Rule 434 Term Sheet has been made in the manner and time
period required by Rule 434; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to
believe that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
at the Closing Date the Final Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vii) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
(viii) without expressing any opinion with respect to the
Warrant Securities, no consent, approval, authorization or order
of any court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts, except such as have been obtained
under the Act
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and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Delayed Deliv-
ery Contracts will conflict with, result in a breach of, or
constitute a default under the charter or by-laws of the Company
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 court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
the Company or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Rhode Island or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine
& ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, any Delayed Delivery Contracts, the Regis-
tration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(d) The Company shall have furnished to the
15
Representatives a certificate of the Company, signed by the Chairman
of the Board, the President or any Executive Vice President and the
principal financial or accounting officer or treasurer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, KPMG Peat Marwick shall have furnished to
the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as
of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the
16
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated condensed financial statements made available by the
Company and its subsidiaries; carrying out certain specified
procedures (but not an audit in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive and audit committees of
the Company; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing
came to their attention which caused them to believe that:
(1) the amounts in the unaudited "Summary Consolidated
Financial Data", if any, included in the Final Prospectus do
not agree with the corresponding amounts in the audited
consolidated condensed financial statements or analyses
prepared by the Company from which such amounts were
derived; or
(2) any unaudited consolidated financial statements
included or incorporated in the Registration Statement and
the Final Prospectus do not comply in form in all material
respects with applicable accounting requirements and with
the published rules and regulations of the Commission with
respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and
said unaudited consolidated condensed financial statements
are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated in the Registration Statement and
the Final Prospectus;
(3) with respect to the period subsequent to the date
of the most recent consolidated financial statements (other
than any capsule information), audited or unaudited, in or
incorporated in the Registration
17
Statement and the Final Prospectus, there were any changes,
at a specified date not more than five business days prior
to the date of the letter, in the long-term debt of the
Company or capital stock of the Company or decreases in the
stockholders' equity of the Company as compared with the
amounts shown on the most recent consolidated balance sheet
included or incorporated in the Registration Statement and
the Final Prospectus, or for the period from the date of the
most recent consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding
year; in consolidated net interest income, consolidated net
interest income after provision for possible loan losses,
consolidated income before income taxes or in total or per
share amounts of consolidated net income of the Company,
except in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; or
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
amounts set forth in the unaudited financial statements for
the same periods or were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information set forth under the captions "Fleet
Financial Group, Inc.", "Recent Developments" and "Consolidated
Ratios of
18
Earnings to Fixed Charges" in the Final Prospectus, the
information included or incorporated in Items 1, 6 and 7 of the
Company's Annual Report on Form 10-K incorporated in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration State-
ment (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been
any decrease in the ratings of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating.
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents (including an opinion of counsel for the Company with
respect to the foreign qualification of specified subsidiaries) as the
Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract
19
Securities arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancelation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all out-
of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as in-
curred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be
-------- --------
liable in any such
20
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such
person did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page, under the heading "Underwriting" or "Plan of Distribution" and,
if Schedule I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party
21
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to appoint counsel satisfactory to such indemnified party to represent the
indemnified party in such action; provided, however, that if the defendants
-------- -------
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to appoint counsel to
defend such action and approval by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party under
this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses
of more than one separate counsel (plus any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7,
representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 7 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) to which the Company and one or more of the Underwriters may
22
be subject in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the Securities
specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter
-------- -------
(except as may be provided in any agreement among underwriters relating to
the offering of the Securities) be responsible for any amount in excess of
the underwriting discount applicable to the Securities purchased by such
Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of the Act shall have the
same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (y) and (z) of
this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to
so notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
--------------------------
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule
II hereto bears to the aggregate amount of Securities set forth opposite
the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
-------- -------
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if
23
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination
------------
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York, Rhode Island, Connecticut, Maine, New Hampshire or
Massachusetts state authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of
a national emergency or war or other calamity or crisis the effect of which
on the financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing
--------
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Senior Vice President and
General Counsel.
24
12. Successors. This Agreement will inure to the benefit of and
-----------
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
---------------
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By:
---------------------------------
Title: Vice President - Finance
CONFIRMED AND ACCEPTED,
as of the date first above written:
BY:
-------------------------------------
For themselves and as Representative of the other
Underwriters named in Schedule II hereto.
