Exhibit 1
FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation); and
FLEET CAPITAL TRUST III
(a Delaware statutory business trust)
4,800,000 Preferred Securities
7.05% Trust Originated Preferred Securities ("TOPrS")
(Liquidation Amount $25 Per Preferred Security)
PURCHASE AGREEMENT
Dated: January 26, 1998
TABLE OF CONTENTS
PURCHASE AGREEMENT 1
SECTION 1 Representations and Warranties. 4
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND THE TRUST 4
(i) Compliance with Registration Requirements 4
(ii) Incorporated Documents 5
(iii) Independent Accountants 5
(iv) Financial Statements 5
(v) No Material Adverse Change in Business 5
(vi) Good Standing of the Company 6
(vii) Existence of Trust 6
(viii) Common Securities 6
(ix) Authorization of Declaration 6
(x) Guarantee Agreements 6
(xi) Capital Securities 7
(xii) Authorization of Indenture 7
(xiii) Authorization of Debentures 7
(xiv) Authorization of Agreement 8
(xv) Absence of Defaults and Conflicts 8
(xvi) Absence of Proceedings 8
(xvii) Absence of Further Requirements 9
(xviii) Possession of Licenses and Permits 9
(xix) Compliance with Cuba Act 9
(xx) Investment Company Act 9
(b) OFFICER'S CERTIFICATES 9
SECTION 2 Sale and Delivery to Underwriters; Closing 9
(a) CAPITAL SECURITIES 9
(b) PAYMENT 10
(c) DENOMINATIONS; REGISTRATION 10
SECTION 3 Covenants of the Company and the Trust 10
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS 10
(b) FILING OF AMENDMENTS 11
(c) DELIVERY OF REGISTRATION STATEMENTS 11
(d) DELIVERY OF PROSPECTUSES 12
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS 12
(f) BLUE SKY QUALIFICATIONS 12
(g) RULE 158 13
(h) RESTRICTION ON SALE OF SECURITIES 13
(i) REPORTING REQUIREMENTS 13
SECTION 4 Payment of Expenses 13
(a) EXPENSES 13
(b) TERMINATION OF AGREEMENT 14
SECTION 5 Conditions of Underwriters' Obligations 14
(a) EFFECTIVENESS OF REGISTRATION STATEMENT 14
(b) OPINION OF COUNSEL FOR COMPANY 14
(c) OPINION OF SPECIAL DELAWARE COUNSEL FOR THE TRUST 14
(d) OPINION OF COUNSEL FOR UNDERWRITERS 15
(e) OFFICERS' CERTIFICATES 15
(f) ACCOUNTANT'S COMFORT LETTER 16
(g) LOCK-UP AGREEMENTS 16
(h) MAINTENANCE OF RATING 16
(i) ADDITIONAL DOCUMENTS 16
(j) TERMINATION OF AGREEMENT 16
SECTION 6 Indemnification 17
(a) INDEMNIFICATION OF UNDERWRITERS 17
(b) INDEMNIFICATION OF TRUST BY COMPANY 17
(c) INDEMNIFICATION OF TRUST, COMPANY, DIRECTORS AND OFFICERS 18
(d) ACTIONS AGAINST PARTIES; NOTIFICATION 18
(e) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE 18
SECTION 7 Contribution 19
SECTION 8 Representations, Warranties and Agreements to Survive Delivery 20
SECTION 9 Termination of Agreement 20
(a) TERMINATION; GENERAL 20
(b) LIABILITIES 21
SECTION 10 Default by One or More of the Underwriters 21
SECTION 11 Notices 22
SECTION 12 Parties 22
SECTION 13 GOVERNING LAW AND TIME 22
SECTION 14 Effect of Headings 22
SCHEDULES
Schedule A - List of Underwriters Sch A-1
Schedule B - List of Subsidiaries Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel A-1
Exhibit B - Form of Opinion of Trust's Special Delaware Counsel B-1
Exhibit C - Form of Lock-up Letter C-1
FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
FLEET CAPITAL TRUST III
(a Delaware statutory business trust)
4,800,000 Preferred Securities
7.05% Trust Originated Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
PURCHASE AGREEMENT
January 26, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
PaineWebber Incorporated
Xxxxx Xxxxxx Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Fleet Capital Trust III (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq.)
confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx"), X.X. Xxxxxxx & Sons, Inc. ("X.X.
Xxxxxxx"), Xxxxx Xxxxxx Incorporated ("PaineWebber") and Xxxxx Xxxxxx Inc.
("Xxxxx Xxxxxx") and each of the Underwriters named in Schedule A hereto
(collectively the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Xxxxxxx
Xxxxx, X.X. Xxxxxxx, PaineWebber and Xxxxx Xxxxxx are acting as Representatives
(in such capacity, the "Representatives") with respect to the issue and sale by
the Trust and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of 7.05% Trust Originated Preferred
Securities (liquidation amount $25 per preferred security) ("Preferred
Securities") set forth in said Schedule A hereto. The Preferred Securities are
more fully described in the Prospectus (as defined below).
The Preferred Securities will be guaranteed by Fleet Financial Group, Inc.
(a Rhode Island corporation) (the "Company"), to the extent set forth in the
Prospectus (as defined below), with respect to distributions and amounts payable
upon liquidation or redemption (the "Preferred Securities Guarantee"), pursuant
to the Preferred Securities Guarantee Agreement (the "Preferred Securities
Guarantee Agreement") to be dated as of Closing Time (as defined below),
executed and delivered by the Company and The First National Bank of Chicago
(the "Guarantee Trustee"), a national banking association not in its individual
capacity but solely as trustee, for the benefit of the holders from time to time
of the Preferred Securities. The Company and the Trust each understand that the
Underwriters propose to make a public offering of the Preferred Securities as
soon as the Representatives deem advisable after this Agreement has been
executed and delivered, and the Declaration (as defined herein), the Indenture
(as defined herein), and the Preferred Securities Guarantee Agreement have been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The entire proceeds from the sale of the Preferred Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities") guaranteed by the Company, to the extent
set forth in the Prospectus, with respect to distributions and amounts payable
upon liquidation or redemption (the "Common Securities Guarantee" and, together
with the Preferred Securities Guarantee, the "Guarantees") pursuant to the
Common Securities Guarantee Agreement (the "Common Securities Guarantee
Agreement" and, together with the Preferred Securities Agreement, the "Guarantee
Agreements"), to be dated as of Closing Time, executed and delivered by the
Company for the benefit of the holders from time to time of the Common
Securities, and will be used by the Trust to purchase the 7.05% Junior
Subordinated Deferrable Interest Debentures due 2028 (the "Debentures") issued
by the Company. The Preferred Securities and the Common Securities will be
issued pursuant to the Amended and Restated Declaration of Trust of the Trust,
to be dated as of Closing Time (the "Declaration"), among the Company, as
Sponsor, The First National Bank of Chicago, as institutional trustee (the
"Institutional Trustee"), First Chicago Delaware Inc., as Delaware trustee (the
"Delaware Trustee"), and Xxxxxx X. XxXxxxx, Xxxxxxx X. Xxxxxx and Xxxx X.
Xxxxxxxxx, as regular trustees (the "Regular Trustees" and together with the
Institutional Trustee and the Delaware Trustee, the "Trustees"), and the holders
from time to time of undivided beneficial interests in the assets of the Trust.
The Debentures will be issued pursuant to an Indenture, dated as of December 11,
1996 (the "Indenture"), between the Company and The First National Bank of
Chicago as trustee (the "Indenture Trustee"), as supplemented by a Supplemental
Indenture to be dated as of Closing Time (the "Supplemental Indenture"), between
the Company and the Indenture Trustee. The Preferred Securities, the Preferred
Securities Guarantee and the Debentures are collectively referred to herein as
the "Securities." Capitalized terms used herein without definition have the
respective meanings specified in the Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3 (No.
333-15435) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), which permits the delayed or continuous
offering of securities pursuant to Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"). Promptly after
execution and delivery of this Agreement, the Company will either (i) prepare
and file a prospectus (including a prospectus supplement relating to the
Securities) in accordance with the provisions of paragraph (b) of Rule 424
("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company has elected
to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file
a term sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and
Rule 424(b). The information included in such prospectus or in such Term Sheet,
as the case may be, that was omitted from such registration statement at the
time it became effective but that is deemed to be part of such registration
statement at the time it became effective pursuant to paragraph (d) of Rule 434
is referred to as "Rule 434 Information. Such registration statement, including
the exhibits thereto, schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective and including the Rule 434 Information, as applicable,
is herein called the "Registration Statement." The Company and the Trust will
also, on the date hereof, file a registration statement pursuant to Rule 462(b)
of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"), and
after such filing the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Preferred Securities is herein called the "Prospectus." For
purposes of this Agreement, all references to the Registration Statement, the
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
REPRESENTATIONS AND WARRANTIES.
REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND THE TRUST. The
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time referred to in
Section 2(b) hereof, and agrees with each Underwriter, as follows:
COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and the Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or the Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company and the Trust, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, the Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective, at the date hereof, and at the Closing Time,
the Registration Statement, the Rule 462(b) Registration Statement,
and any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations") and did
not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the
Closing Time, included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company and the Trust will comply with the requirements
of Rule 434. The representations and warranties in this subsection
shall not apply (A) to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Trust or the Company in
writing by any Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement or Prospectus or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility
and Qualification on Form T-1 (the "Forms T-1) under the Trust
Indenture Act of the Indenture Trustee, the Institutional Trustee and
the Guarantee Trustee.
The prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the date hereof, at the
time the Prospectus was issued and at the Closing Time, did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration
Statement.
NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C)
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock, except for
dividends paid by the Company in the ordinary course of business
consistent with past practice.
GOOD STANDING OF THE COMPANY. Each of the Company and the
subsidiaries of the Company listed on Schedule B hereto, (the
"Significant Subsidiaries") has been duly incorporated and is validly
existing as a corporation or national banking association in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
the Company is duly qualified to do business as a foreign corporation
under the laws of the State of New York and the laws of the
Commonwealth of Massachusetts; and neither the Company nor any
Significant Subsidiary is required to be qualified to do business as a
foreign corporation under the laws of any other jurisdiction, and the
Company is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended.
EXISTENCE OF TRUST. The Trust has been duly created and is
validly existing in good standing as a business trust under the
Delaware Act, is and will be treated as a "grantor trust" for federal
income tax purposes under existing law, has the business trust power
and authority to conduct its business as presently conducted and as
described in the Prospectus, and is not required to be authorized to
do business in any other jurisdiction.
COMMON SECURITIES. The Common Securities have been duly
authorized by the Declaration and, when issued and delivered by the
Trust to the Company in accordance with the terms of the Declaration
and against payment therefor as described in the Prospectus, will be
validly issued and (subject to the terms of the Declaration) fully
paid and nonassessable undivided beneficial interests in the assets of
the Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; no holder thereof will be subject
to personal liability by reason of being such a holder; and at the
Closing Time, all of the issued and outstanding Common Securities of
the Trust will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
AUTHORIZATION OF DECLARATION. The Declaration has been duly
authorized by the Company and duly qualified under the 1939 Act and,
when validly executed and delivered by the Company and the Regular
Trustees, and assuming the due authorization, execution and delivery
of the Declaration by the Delaware Trustee and the Institutional
Trustee, the Declaration will constitute a valid and binding
obligation of the Company and the Regular Trustees, enforceable
against the Company and the Regular Trustees in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
GUARANTEE AGREEMENTS. The Preferred Securities Guarantee
Agreement has been duly authorized by the Company and duly qualified
under the 1939 Act and, when validly executed and delivered by the
Company, and assuming due authorization, execution and delivery of the
Preferred Securities Guarantee Agreement by the Guarantee Trustee,
will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
PREFERRED SECURITIES. The Preferred Securities have been duly
authorized by the Declaration and, when authenticated in the manner
provided for in the Declaration and issued and delivered pursuant to
this Agreement against payment of the consideration set forth herein,
will be validly issued and (subject to the terms of the Declaration)
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust; the issuance of the Preferred Securities is not
subject to preemptive or other similar rights; and holders of
Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit incorporated under the General Corporation Law of the State
of Delaware.
AUTHORIZATION OF INDENTURE. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and,
when duly executed and delivered by the Company and assuming the due
authorization, execution and delivery of the Indenture by the
Indenture Trustee, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
AUTHORIZATION OF DEBENTURES. The Debentures have been duly
authorized by the Company, and when executed, authenticated, issued
and delivered in the manner provided for in the Indenture and sold and
paid for as provided in this Agreement, the Debentures will constitute
valid and binding obligations of the Company entitled to the benefits
of the Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
ABSENCE OF DEFAULTS AND CONFLICTS. The execution and delivery by
the Company and the Trust of, and the performance by the Company and
the Trust of their obligations under, this Agreement, the execution
and delivery by the Company of, and the performance by the Company of
its obligations under, the Declaration, the Preferred Securities
Guarantee Agreement and the Indenture, the issuance and delivery by
the Trust of the Common Securities and Preferred Securities and the
consummation of the sale of the Preferred Securities and the
fulfillment of the terms herein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under (in each case material to the Company and its
subsidiaries (including the Trust) considered as a whole or as to the
Trust separately), any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease, financing agreement or other similar
agreement or instrument to which the Company or any of its
subsidiaries (including the Trust) is a party or by which the Company
or any of its subsidiaries (including the Trust) is bound or to which
any of the property or assets of the Company or any of its
subsidiaries (including the Trust) is subject, nor will such actions
result in any violation of the provisions of the certificate of
incorpora tion or by-laws of the Company or the Declaration of the
Trust, nor will such actions result in any violation (in each case
material to the Company and its subsidiaries (including the Trust)
considered as a whole or as to the Trust separately) of any statute or
any order, rule or regulation of any court or regulatory authority or
other governmental body having jurisdiction over the Trust or the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for, and the absence of
which would materially affect, the performance by the Company and the
Trust of their obligations under this Agree ment and the issuance and
delivery of the Preferred Securities, except such approvals as will be
obtained under the Securities Act, the Exchange Act or the 1939 Act
and as may be required by the securities or Blue Sky laws of the
various states or the securities laws of non-U.S. jurisdictions in
connection with the sale of the Preferred Securities.
ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company or the Trust, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets of the
Company and its subsidiaries taken as a whole or the consummation of
the transactions contemplated in this Agreement or the performance by
the Company or the Trust of its obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them,
except for such Governmental Licenses the absence of which would not
cause a Material Adverse Effect; the Company and its subsidiaries are
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or
in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
COMPLIANCE WITH CUBA ACT. The Company and the Trust have complied
with, and is and will be in compliance with, the provisions of that
certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the
rules and regulations thereunder (collectively, the "Cuba Act") or is
exempt therefrom.
INVESTMENT COMPANY ACT. Neither the Company nor the Trust is, and
upon the issuance and sale of the Preferred Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus neither will be, an "investment company"
or an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby.
SALE AND DELIVERY TO UNDERWRITERS; CLOSING
PREFERRED SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the purchase price of $25 per Preferred Security, the number of
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Preferred Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments among the
Underwriters as they in their sole discretion shall make to eliminate any sales
or purchases of fractional securities. As compensation to the Underwriters for
their commitments hereunder and in view of the fact that the proceeds of the
sale of the Preferred Securities will be used to purchase the Debentures, the
Company hereby agrees to pay at the Closing Time to the Underwriters a
commission of $0.7875 per Preferred Security purchased by the Underwriters.
PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Preferred Securities shall be made at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Underwriters, the
Company and the Trust, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriters, the Company and the Trust (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Preferred Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the Preferred Securities which it has agreed to purchase. Xxxxxxx
Xxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Preferred
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
At Closing Time the Company will pay, or cause to be paid, the commission
payable at such time under this Section 2 to Xxxxxxx Xxxxx on behalf of the
Underwriters by wire transfer of immediately available funds.
DENOMINATIONS; REGISTRATION. Certificates for the Preferred Securities
shall be in such denominations and registered in such names as the
Representatives may request in writing at least two full business days before
the Closing Time. The certificates for the Preferred Securities will be made
available for examination and packaging by the Representatives in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time.
COVENANTS OF THE COMPANY AND THE TRUST. THE COMPANY AND THE TRUST
JOINTLY AND SEVERALLY COVENANT WITH EACH UNDERWRITER AS FOLLOWS:
COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company and the Trust, subject to Section 3(b), will comply with the
requirements of Rule 424 or Rule 434, as applicable, and will notify the
Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any prospectus, or of
the suspension of the qualification of the Preferred Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. The Company and the Trust will
promptly effect the filings necessary pursuant to Rule 424(b) and will take
such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file
such prospectus. The Company and the Trust will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
FILING OF AMENDMENTS. The Company and the Trust will give the
Representatives notice of their intention to file or prepare any amendment
to the Registration Statement (including any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will furnish the Representatives with copies of any such documents to, and
consult with, the Representatives and their counsel within a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which the Representatives or
counsel for the Representatives shall reasonably object in writing;
PROVIDED, HOWEVER, that the foregoing shall not apply to any of the
Company's filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which such
filings the Company will cause to be delivered to the Representatives
promptly after being transmitted for filing with the Commission.
DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Representatives and counsel for the Representatives,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and, upon request, documents incorporated
or deemed to be incorporated by reference therein), and will also deliver
to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Representatives. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
DELIVERY OF PROSPECTUSES. The Company will deliver to each
Underwriter, without charge, as many copies of the Prospectus as such
Underwriter reasonably requests, and the Company and the Trust hereby
consent to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company and the
Trust will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Preferred Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters and for the
Company or Trust, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company and the Trust will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
BLUE SKY QUALIFICATIONS. The Company and the Trust will each use
its best efforts, in cooperation with the Underwriters, to qualify the
Preferred Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Underwriters may designate and to maintain such qualifications in effect
for a period of not less than one year from the date hereof; provided,
however, that neither the Company nor the Trust shall be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Preferred Securities have been so qualified,
the Company and the Trust will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the date hereof. The
Company and the Trust will also supply the Underwriters with such
information as is necessary for the determination of the legality of the
Preferred Securities for investment under the laws of such jurisdictions as
the Underwriters may request.
RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
RESTRICTION ON SALE OF SECURITIES. During a period of 7 days from
the date of the Prospectus, neither the Company nor the Trust will, without
the prior written consent of Xxxxxxx Xxxxx, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any Preferred
Securities or Debentures (or any equity or debt securities substantially
similar to the Preferred Securities or Debentures, respectively). The
foregoing sentence shall not apply to the Preferred Securities or
Debentures to be sold hereunder.
REPORTING REQUIREMENTS. The Company and the Trust, during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
PAYMENT OF EXPENSES. (A) EXPENSES. THE COMPANY WILL PAY ALL EXPENSES
INCIDENT TO THE PERFORMANCE OF ITS AND THE TRUST'S OBLIGATIONS UNDER THIS
AGREEMENT, INCLUDING (I) THE PREPARATION, PRINTING AND FILING OF THE
REGISTRATION STATEMENT (INCLUDING FINANCIAL STATEMENTS AND EXHIBITS) AS
ORIGINALLY FILED AND OF EACH AMENDMENT THERETO, (II) THE PREPARATION, PRINTING
AND DELIVERY TO THE UNDERWRITERS OF THIS AGREEMENT, ANY AGREEMENT AMONG
UNDERWRITERS AND SUCH OTHER DOCUMENTS AS MAY BE REQUIRED IN CONNECTION WITH THE
OFFERING, PURCHASE, SALE, ISSUANCE OR DELIVERY OF THE PREFERRED SECURITIES,
(III) THE PREPARATION, ISSUANCE AND DELIVERY OF THE CERTIFICATES FOR THE
PREFERRED SECURITIES TO THE UNDERWRITERS, INCLUDING ANY STOCK OR OTHER TRANSFER
TAXES AND ANY STAMP OR OTHER DUTIES PAYABLE UPON THE SALE, ISSUANCE OR DELIVERY
OF THE PREFERRED SECURITIES TO THE UNDERWRITERS, (IV) THE FEES AND DISBURSEMENTS
OF THE COMPANY'S AND THE TRUST'S COUNSEL, ACCOUNTANTS AND OTHER ADVISORS, (V)
THE QUALIFICATION OF THE PREFERRED SECURITIES UNDER SECURITIES LAWS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3(F) HEREOF, INCLUDING FILING FEES AND
THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR THE UNDERWRITERS IN
CONNECTION THEREWITH AND IN CONNECTION WITH THE PREPARATION OF THE BLUE SKY
SURVEY AND ANY SUPPLEMENT THERETO, IF ANY, (VI) THE PRINTING AND DELIVERY TO THE
UNDERWRITERS OF COPIES OF EACH PRELIMINARY PROSPECTUS, ANY TERM SHEETS AND OF
THE PROSPECTUS AND ANY AMENDMENTS OR SUPPLEMENTS THERETO, (VII) THE PRINTING AND
DELIVERY TO THE UNDERWRITERS OF COPIES OF THE BLUE SKY SURVEY AND ANY SUPPLEMENT
THERETO, IF ANY, (VIII) THE FEES AND EXPENSES OF ANY TRANSFER AGENT OR REGISTRAR
FOR THE PREFERRED SECURITIES, (IX) THE FEES AND EXPENSES OF THE INDENTURE
TRUSTEE, INCLUDING THE FEES AND DISBURSEMENTS OF COUNSEL FOR THE INDENTURE
TRUSTEE IN CONNECTION WITH THE INDENTURE AND THE DEBENTURES, (X) THE FEES AND
EXPENSES OF THE DELAWARE TRUSTEE, THE INSTITUTIONAL TRUSTEE AND THE GUARANTEE
TRUSTEE, INCLUDING THE FEES AND DISBURSEMENTS OF COUNSEL FOR THE DELAWARE
TRUSTEE, THE INSTITUTIONAL TRUSTEE AND THE GUARANTEE TRUSTEE, (XI) ANY FEES
PAYABLE IN CONNECTION WITH THE RATING OF THE PREFERRED SECURITIES AND THE
DEBENTURES AND (XII) THE COST AND CHARGES ASSOCIATED WITH THE APPROVAL OF THE
PREFERRED SECURITIES BY THE DEPOSITARY TRUST COMPANY FOR "BOOK-ENTRY" TRANSFER.
TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
CONDITIONS OF UNDERWRITERS' OBLIGATIONS. THE OBLIGATIONS OF THE
SEVERAL UNDERWRITERS HEREUNDER ARE SUBJECT TO THE ACCURACY OF THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE TRUST CONTAINED IN SECTION
1 HEREOF OR IN CERTIFICATES OF ANY OFFICER OF THE COMPANY OR ANY TRUSTEE
DELIVERED PURSUANT TO THE PROVISIONS HEREOF, TO THE PERFORMANCE BY THE COMPANY
AND THE TRUST OF THEIR RESPECTIVE COVENANTS AND OTHER OBLIGATIONS HEREUNDER, AND
TO THE FOLLOWING FURTHER CONDITIONS:
EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement,
including the Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus shall have
been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with Rule 424(b).
OPINION OF COUNSEL FOR COMPANY. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, of Xxxxxxx
& Xxxxxx, counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters substantially to the effect set forth in
Exhibit A hereto and to such further effect as counsel to the Underwriters may
reasonably request. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
OPINION OF SPECIAL DELAWARE COUNSEL FOR THE TRUST. At Closing Time,
the Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special Delaware
counsel to the Trust, together with signed or reproduced copies of such letter
for each of the Underwriters to the effect set forth in Exhibit B hereto and to
such further effect as counsel to the Underwriters may reasonably request.
OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the validity of the Preferred Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York, the federal law of the United States, the Business
Trust Act of the State of Delaware and the General Corporation Law of the State
of Delaware, upon the opinions of counsel satisfactory to the Underwriters. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
OFFICERS' CERTIFICATES. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, (A) any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chairman, the
President, a Vice Chairman or a Vice President of the Company and of the chief
financial or chief accounting officer or the Treasurer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time (except for representations or warranties which by their terms
speak as of a different date or dates), (iii) the Company has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are, to
the best of the Company's knowledge, threatened by the Commission; or (B) any
material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Trust, and the Representatives shall have
received a certificate of a Regular Trustee of the Trust, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time (except for representations or warranties which by their terms
speak as of a different date or dates), (iii) the Trust has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are, to
the best of the Trust's knowledge, threatened by the Commission.
ACCOUNTANT'S COMFORT LETTER. At the Closing Time, the Representatives
shall have received from KPMG Peat Marwick LLP ("KPMG") a letter dated such
date, in form and substance satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each of the Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
LOCK-UP AGREEMENTS. At the date of this Agreement, the Representatives
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the Company and the Trust.
MAINTENANCE OF RATING. At Closing Time, the Preferred Securities shall
be rated at least a2 by Xxxxx'x Investors Service, Inc. and BBB by Standard &
Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and the Company shall
have delivered to the Underwriters a letter dated the Closing Time, from each
such rating agency, or other evidence satisfactory to the Representatives,
confirming that the Preferred Securities have such ratings; and since the date
of this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Preferred Securities or any of the Company's preferred
securities by any "nationally recognized statistical rating agency", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act, and no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Company's
preferred securities.
ADDITIONAL DOCUMENTS. At Closing Time counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Preferred Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
and Trust in connection with the issuance and sale of the Preferred Securities
as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
TERMINATION OF AGREEMENT. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to Closing Time and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
INDEMNIFICATION.
INDEMNIFICATION OF UNDERWRITERS. Each of the Company and the Trust jointly
and severally agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission provided that (subject to Section 6(e)
below) any such settlement is effected with the written consent of the
Company; and
against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or the Prospectus (or any amendment or supplement thereto).
INDEMNIFICATION OF TRUST BY COMPANY. The Company agrees to indemnify
the Trust against all loss, liability, claim, damage and expense whatsoever as
due from the Trust under Section 6(a) hereunder.
INDEMNIFICATION OF TRUST, COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, the Company's directors, each of the Company's officers and the Trustee
of the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company, in each case reasonably
acceptable to the indemnifying party. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a) (ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
CONTRIBUTION. IF THE INDEMNIFICATION PROVIDED FOR IN SECTION 6 HEREOF
IS FOR ANY REASON UNAVAILABLE TO OR INSUFFICIENT TO HOLD HARMLESS AN INDEMNIFIED
PARTY IN RESPECT OF ANY LOSSES, LIABILITIES, CLAIMS, DAMAGES OR EXPENSES
REFERRED TO THEREIN; THEN EACH INDEMNIFYING PARTY SHALL CONTRIBUTE TO THE
AGGREGATE AMOUNT OF SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES AND EXPENSES
INCURRED BY SUCH INDEMNIFIED PARTY, AS INCURRED, (I) IN SUCH PROPORTION AS IS
APPROPRIATE TO REFLECT THE RELATIVE BENEFITS RECEIVED BY THE COMPANY AND THE
TRUST ON THE ONE HAND AND THE UNDERWRITERS ON THE OTHER HAND FROM THE OFFERING
OF THE PREFERRED SECURITIES PURSUANT TO THIS AGREEMENT OR (II) IF THE ALLOCATION
PROVIDED BY CLAUSE (I) IS NOT PERMITTED BY APPLICABLE LAW, IN SUCH PROPORTION AS
IS APPROPRIATE TO REFLECT NOT ONLY THE RELATIVE BENEFITS REFERRED TO IN CLAUSE
(I) ABOVE BUT ALSO THE RELATIVE FAULT OF THE COMPANY AND THE TRUST ON THE ONE
HAND AND OF THE UNDERWRITERS ON THE OTHER HAND IN CONNECTION WITH THE STATEMENTS
OR OMISSIONS, WHICH RESULTED IN SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES OR
EXPENSES, AS WELL AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS.
The relative benefits received by the Company and the Trust on the one hand
and the Underwriters on the other hand in connection with the offering of the
Preferred Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Preferred Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Trust on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Trust and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company and the Trustee of the
Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Preferred Securities
set forth opposite their respective names in Schedule A hereto and not joint.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. ALL
REPRESENTATIONS, WARRANTIES AND AGREEMENTS CONTAINED IN THIS AGREEMENT OR IN
CERTIFICATES OF OFFICERS OF THE COMPANY OR THE TRUSTEES OF THE TRUST OR ANY OF
ITS OTHER SUBSIDIARIES SUBMITTED PURSUANT HERETO, SHALL REMAIN OPERATIVE AND IN
FULL FORCE AND EFFECT, REGARDLESS OF ANY INVESTIGATION MADE BY OR ON BEHALF OF
ANY UNDERWRITER OR CONTROLLING PERSON, OR BY OR ON BEHALF OF THE COMPANY, AND
SHALL SURVIVE DELIVERY OF THE PREFERRED SECURITIES TO THE UNDERWRITERS.
TERMINATION OF AGREEMENT.
TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Company and the Trust, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Preferred Securities or to enforce contracts for the
sale of the Preferred Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
LIABILITIES. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. IF ONE OR MORE OF THE
UNDERWRITERS SHALL FAIL AT CLOSING TIME TO PURCHASE THE PREFERRED SECURITIES
WHICH IT OR THEY ARE OBLIGATED TO PURCHASE UNDER THIS AGREEMENT (THE "DEFAULTED
SECURITIES"), THE REPRESENTATIVES SHALL HAVE THE RIGHT, WITHIN 24 HOURS
THEREAFTER, TO MAKE ARRANGEMENTS FOR ONE OR MORE OF THE NON-DEFAULTING
UNDERWRITERS, OR ANY OTHER UNDERWRITERS, TO PURCHASE ALL, BUT NOT LESS THAN ALL,
OF THE DEFAULTED SECURITIES IN SUCH AMOUNTS AS MAY BE AGREED UPON AND UPON THE
TERMS HEREIN SET FORTH; IF, HOWEVER, THE REPRESENTATIVES SHALL NOT HAVE
COMPLETED SUCH ARRANGEMENTS WITHIN SUCH 24-HOUR PERIOD, THEN:
if the number of Defaulted Securities does not exceed 10% of the
number of Preferred Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
if the number of Defaulted Securities exceeds 10% of the number
of Preferred Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Representatives or the Company shall have the right to
postpone Closing Time, for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL BE IN
WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN IF MAILED OR TRANSMITTED BY
ANY STANDARD FORM OF TELECOMMUNICATION. NOTICES TO THE REPRESENTATIVES SHALL BE
DIRECTED TO XXXXXXX XXXXX AT NORTH TOWER, WORLD FINANCIAL CENTER, NEW YORK, NEW
YORK 10281-1201, ATTENTION OF SYNDICATE OPERATIONS; NOTICES TO THE TRUST SHALL
BE DIRECTED TO IT AT THE FIRST NATIONAL BANK OF CHICAGO, XXX XXXXX XXXXX XXXXXX,
0XX XXXXX, XXXXXXX, XXXXXXXX, ATTENTION OF CORPORATE TRUST ADMINISTRATOR AND
NOTICES TO THE COMPANY SHALL BE DIRECTED TO IT AT FLEET FINANCIAL GROUP, INC.,
XXX XXXXXXX XXXXXX, XXXXXX, XXXXXXXXXXXXX, 00000, ATTENTION OF GENERAL COUNSEL.
PARTIES. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING
UPON THE UNDERWRITERS, THE COMPANY AND THE TRUST AND THEIR RESPECTIVE
SUCCESSORS. NOTHING EXPRESSED OR MENTIONED IN THIS AGREEMENT IS INTENDED OR
SHALL BE CONSTRUED TO GIVE ANY PERSON, FIRM OR CORPORATION, OTHER THAN THE
UNDERWRITERS, THE COMPANY AND THE TRUST AND THEIR RESPECTIVE SUCCESSORS AND THE
CONTROLLING PERSONS AND OFFICERS AND DIRECTORS REFERRED TO IN SECTIONS 6 AND 7
AND THEIR HEIRS AND LEGAL REPRESENTATIVES, ANY LEGAL OR EQUITABLE RIGHT, REMEDY
OR CLAIM UNDER OR IN RESPECT OF THIS AGREEMENT OR ANY PROVISION HEREIN
CONTAINED. THIS AGREEMENT AND ALL CONDITIONS AND PROVISIONS HEREOF ARE INTENDED
TO BE FOR THE SOLE AND EXCLUSIVE BENEFIT OF THE UNDERWRITERS, THE COMPANY AND
THE TRUST AND THEIR RESPECTIVE SUCCESSORS, AND SAID CONTROLLING PERSONS AND
OFFICERS AND DIRECTORS AND THEIR HEIRS AND LEGAL REPRESENTATIVES, AND FOR THE
BENEFIT OF NO OTHER PERSON, FIRM OR CORPORATION. NO PURCHASER OF SECURITIES FROM
ANY UNDERWRITER SHALL BE DEEMED TO BE A SUCCESSOR BY REASON MERELY OF SUCH
PURCHASE.
GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
EFFECT OF HEADINGS. THE ARTICLE AND SECTION HEADINGS HEREIN AND THE
TABLE OF CONTENTS ARE FOR CONVENIENCE ONLY AND SHALL NOT AFFECT THE CONSTRUCTION
HEREOF.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters, the Company and the Trust in accordance with
its terms.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By: /S/ XXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Regular Trustee
FLEET CAPITAL TRUST III
By: /S/ XXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Regular Trustee
By: /S/ XXXX X. XXXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED, as of the
date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXXX & SONS, INC.
XXXXX XXXXXX INCORPORATED
XXXXX XXXXXX INC.
By: XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ XXX XXXXXX
----------------------------------
Authorized Signatory
SCHEDULE A
NAME OF UNDERWRITER NUMBER OF
PREFERRED
SECURITIES
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 937,500
X.X. Xxxxxxx & Sons, Inc. 937,500
Xxxxx Xxxxxx Incorporated 937,500
Xxxxx Xxxxxx Inc. 937,500
BT Alex. Xxxxx Incorporated 75,000
Bear, Xxxxxxx & Co. Inc 75,000
CIBC Xxxxxxxxxxx Corp 75,000
Xxxxx & Company 75,000
Xxxx Xxxxxxxx Incorporated 75,000
Donaldon, Lufkin & Xxxxxxxx Securities Corporation 75,000
EVEREN Securities, Inc. 75,000
First Albany Corporation 75,000
The Ohio Company 75,000
Xxxxx Xxxxxxx Inc. 75,000
Xxxxxxx Xxxxx & Associates, Inc. 75,000
Xxxxxx Xxxxxxx Incorporated 75,000
US Clearing Corp. 75,000
Wheat, First Securities, Inc. 75,000
Total 4,800,000
SCHEDULE B
List of Significant Subsidiaries
Fleet National Bank
Fleet Bank, National Association
Exhibit A
Form of opinion, dated as of Closing Time, of Xxxxxxx & Xxxxxx, counsel for
the Company and the Trust, substantially to the effect that:
Each of the Company and the subsidiaries of the Company listed on
Schedule B hereto, (the "Significant Subsidiaries") has been duly incorporated
and is validly existing as a corporation or national banking association in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus; the Company is duly
qualified to do business as a foreign corporation under the laws of the State of
New York; and neither the Company nor any Significant Subsidiary is required to
be qualified to do business as a foreign corporation under the laws of any other
jurisdiction, and the Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended.
All the outstanding shares of the capital stock of the Significant
Subsidiaries have been duly and validly authorized and issued and are fully paid
and (except as provided in 12 U.S.C. Section 55 in the case of Fleet National
Bank and Fleet Bank, National Association) nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of capital stock
of the Significant Subsidiaries are owned by the Company, free and clear of any
perfected security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests claims, liens or encumbrances.
The Purchase Agreement has been duly authorized by the Company and has
been duly executed and delivered by each of the Company and the Trust.
The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
The Debentures have been duly authorized, executed and delivered by
the Company and when the Debentures have been duly authenticated by the
Indenture Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Trust, the Debentures will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
The Declaration has been duly authorized, executed and delivered by
the Company; and, assuming the due authorization, execution and delivery of the
Declaration by First Chicago Delaware Inc. and The First National Bank of
Chicago, the Declaration constitutes a valid and binding obligation of the
Company and is enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
The Preferred Securities Guarantee Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
The Indenture, Preferred Securities Guarantee Agreement and the
Declaration have each been duly qualified under the 1939 Act.
The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive rights under the Articles of Incorporation or
By-Laws of the Company or the laws of the State of Rhode Island to subscribe for
the Preferred Securities or the Debentures.
The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which such counsel need express no opinion), when they were
filed with the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
The statements made in the Prospectus under the captions "Description
of the Preferred Securities", "Description of the Guarantee", "Description of
the Junior Subordinated Debentures" and "Effect of Obligations Under the Junior
Subordinated Debentures and the Guarantee", insofar as such statements purport
to summarize certain provisions of the Preferred Securities, the Common
Securities, the Debentures, the Preferred Securities Guarantee, the Indenture,
the Declaration, the Preferred Securities Guarantee Agreement and the Articles
of Incorporation of the Company, to the extent that they constitute matters of
law or legal conclusions, have been reviewed by such counsel and fairly
summarize the information required to be disclosed therein.
Neither the issue and sale by the Trust of the Preferred Securities,
nor the consummation of any other of the transactions contemplated by the
Purchase Agreement nor the fulfillment of the terms in the Purchase Agreement
will conflict with, result in a breach of, or constitute a default under the
charter or by-laws of the Company or the organizational documents or Declaration
of the Trust or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its subsidiaries is a
party or bound, or any order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of any governmental body or
arbitrator having jurisdiction over the Company or any of its subsidiaries.
Neither the Company nor the Trust is required to be registered under
the Investment Company Act of 1940, as amended.
There is no pending or, to the best knowledge of such counsel,
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit, which is
not described or filed as required.
Such counsel has been orally advised by the Commission that the
Registration Statement was declared effective under the 1933 Act on December 5,
1996; the Rule 462(b) Registration Statement became effective on filing on
January 26, 1998; any required filing of the Prospectus pursuant to Rule 424(b)
under the 1933 Act has been made in the manner and within the time period
required by Rule 424(b) and, such counsel has been orally advised by the
Commission that no stop order suspending the effectiveness of the Registration
Statement has been issued by the Commission and, no proceeding for that purpose
is pending or, to such Counsel's knowledge, threatened by the Commission.
No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated by the Purchase Agreement, except such as have been obtained under
the Securities Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Preferred
Securities by the Underwriters and such other approvals (specified in such
opinion) as have been obtained.
No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
The Registration Statement, as of its effective date, and the
Prospectus, as of its date, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act and the
1933 Act Regulations, except that in each case such counsel need not express an
opinion as to the financial statements, schedules and other financial and
statistical data included therein or excluded therefrom or the exhibits to the
Registration Statement, and such counsel need not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus except for those made under the
captions "Description of Preferred Securities", "Description of the Guarantee",
"Description of the Junior Subordinated Debentures", "Effect of Obligations
Under the Junior Subordinated Debentures and the Guarantee", and "Description of
Preferred Stock" in the Prospectus insofar as they relate to provisions of
documents therein described.
Additionally, in giving its opinion, such counsel shall state that such
counsel has participated in conferences with representatives of the
Underwriters, officers and other representa tives of the Company and
representatives of the independent certified public accountants of the Company,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel does
not pass upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except and only to the extent as set forth in
paragraphs (xxviii) above), on the basis of the foregoing (relying as to
materiality to a large extent upon the discussions with and representations and
opinions of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead such counsel to believe that
the Registration Statement at the time it became effective or at the date hereof
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date or the date of such
opinion, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; PROVIDED that such
counsel does not express any comment with respect to the financial statements
including the notes thereto and supporting schedules, or any other financial and
statistical data set forth or referred to in the Registration Statement or the
Prospectus.
Exhibit B
Form of opinion, dated as of Closing Time, of Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP, special Delaware counsel for the Trust, substantially to the effect
that:
the Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; and the Trust has the
trust power and authority to conduct its business, as described in the
Prospectus.
the Amended and Restated Declaration is a valid and binding obligation
of the Company and the Trustees, enforceable against the Company and the
Trustees in accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency (including without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
except to the extent that the rights to indemnity and contribution contained
therein may be limited by state or securities laws or the public policy
underlying such laws.
the Preferred Securities have been duly authorized for issuance in
accordance with the Amended and Restated Declaration and, subject to the
qualifications set forth below, when certificates therefor in the form examined
by us are issued, executed and authenticated in accordance with the Amended and
Restated Declaration and delivered and paid for in accordance with the Purchase
Agreement, will be validly issued, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will entitle the holders of
the Preferred Securities to the benefits of the Amended and Restated Declaration
except to the extent that enforcement of the Amended and Restated Declaration
may be limited by (i) bankruptcy, insolvency (including without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and except to the extent that
the rights to indemnity and contribution contained therein may be limited by
state or securities laws or the public policy underlying such laws; and the
holders of the Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware. We bring
to your attention, however, that the holders of Preferred Securities may be
obligated, pursuant to the Amended and Restated Declaration, to make payments,
including (i) to provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers of Preferred Securities and
the issuance of replacement Preferred Securities, and (ii) to provide security
and indemnity in connection with requests of or directions to the Institutional
Trustee to exercise its rights and powers under the Amended and Restated
Declaration.
the issuance of the Preferred Securities is not subject to preemptive
or other similar rights under the Delaware Act or the Amended and Restated
Declaration.
under the Amended and Restated Declaration and the Delaware Act, the
Trust has the requisite trust power and authority to execute and deliver the
Purchase Agreement, and to perform its obligations under the Purchase Agreement
and to consummate the transactions contemplated thereby. The Purchase Agreement
has been duly authorized, executed and delivered by the Trust.
the statements made in the Prospectus under the caption "Description
of the Preferred Securities" insofar as such statements constitute summaries of
Delaware law are accurate in all material respects.
[FORM OF LOCK-UP PURSUANT TO SECTION 5(G)]
Exhibit C
January 26, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxx Xxxxxx Incorporated
Xxxxx Xxxxxx Inc.
as Representatives of the several Underwriters
c/o Merrill Xxxxx & Co.
....Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: PROPOSED PUBLIC OFFERING BY FLEET FINANCIAL GROUP, INC.
Dear Sirs:
The undersigned, Fleet Financial Group, Inc., a Rhode Island corporation
(the "Company") and Fleet Preferred Trust III, a Delaware Statutory business
trust (the "Trust") understand that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), X.X. Xxxxxxx & Sons, Inc., Xxxxx
Xxxxxx Incorporated and Xxxxx Xxxxxx Inc. propose to enter into a Purchase
Agreement (the "Purchase Agreement") with the Company and the Trust, providing
for the public offering of $120,000,000 of the Trust's 7.05% Preferred
Securities ("Preferred Securities"). In connection with the foregoing, the
Company will deposit in the Trust its 7.05% Junior Subordinated Deferable
Interest Debentures due 2028 (the "Junior Subordinated Debentures"). In
recognition of the benefit that such an offering will confer upon the
undersigned and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreement that, during a period of seven
(7) days from the date of the Purchase Agreement, the undersigned will not,
without the prior written consent of Xxxxxxx Xxxxx, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any Preferred Securities, any
security convertible into or exchangeable into or exercisable for Preferred
Securities or Junior Subordinated Debentures or any debt securities
substantially similar to the Junior Subordinated Debentures or equity securities
substantially similar to the Preferred Securities, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing (except for a registration statement pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, relating to the Preferred Securities) or
(ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of Preferred Securities, any security convertible into or
exchangeable into or exercisable for Preferred Securities or Junior Subordinated
Debentures or any debt securities substantially similar to the Junior
Subordinated Debentures or equity securities substantially similar to the
Preferred Securities, whether any such swap or transaction is to be settled by
delivery of Preferred Securities, Junior Subordinated Debentures or other
securities, in cash or otherwise.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By:
-----------------------------------
Title -----------------------------------
FLEET CAPITAL TRUST III
By:
-----------------------------------
Name:
Title: Regular Trustee
By:
-----------------------------------
Name:
Title: Regular Trustee
