EXHIBIT 1
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FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation); and
FLEET CAPITAL TRUST V
(a Delaware statutory business trust)
250,000 Capital Securities
Floating Rate Capital Securities
(Liquidation Amount $1,000 Per Capital Security)
PURCHASE AGREEMENT
Dated: December 15, 1998
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Table of Contents
SCHEDULES
Schedule A - List of UnderwritersSch A-1
Schedule B - List of
SubsidiariesSch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's CounselA-1
Exhibit B - Form of
Opinion of Trust's Special Delaware CounselB-1
Exhibit C - Form of
Lock-up LetterC-1
FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
FLEET CAPITAL TRUST V
(a Delaware statutory business trust)
250,000 Capital Securities
Floating Rate Capital Securities
(Liquidation Amount $1,000 Per Capital Security)
December 15, 1998
XXXXXX BROTHERS INC.
American Express Tower
10th Floor
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Fleet Capital Trust V (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12 of the Delaware Code, 12 Del. C. ss. ss. 3801 et seq.)
confirms its agreement with Xxxxxx Brothers Inc. (Xxxxxx Brothers") 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 Xxxxxx Brothers is acting as
Representative (in such capacity, the "Representative") 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 Floating Rate Capital
Securities (liquidation amount $1,000 per capital security) ("Capital
Securities") set forth in said Schedule A hereto. The Capital Securities are
more fully described in the Prospectus (as defined below).
The Capital Securities will be guaranteed by Fleet Financial Group, Inc. (a
Rhode Island corporation) (the "Company"), to the extent set forth in the
Prospectus (as defined below), with respect to distributions and amounts payable
upon liquidation or redemption (the "Capital Securities Guarantee"), pursuant to
the Capital Securities Guarantee Agreement (the "Capital Securities Guarantee
Agreement") to be dated as of Closing Time (as defined below), executed and
delivered by the Company and The First National Bank of Chicago (the "Guarantee
Trustee"), a national banking association not in its individual capacity but
solely as trustee, for the benefit of the holders from time to time of the
Capital Securities. The Company and the Trust each understand that the
Underwriters propose to make a public offering of the Capital Securities as soon
as the Representative deems advisable after this Agreement has been executed and
delivered, and the Declaration (as defined herein), the Indenture (as defined
herein), and the Capital Securities Guarantee Agreement have been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). The entire
proceeds from the sale of the Capital Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities") guaranteed by the Company, to the extent
set forth in the Prospectus, with respect to distributions and amounts payable
upon liquidation or redemption (the "Common Securities Guarantee" and, together
with the Capital Securities Guarantee, the "Guarantees") pursuant to the Common
Securities Guarantee Agreement (the "Common Securities Guarantee Agreement" and,
together with the Capital Securities Guarantee 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 Floating Rate Junior
Subordinated Deferrable Interest Debentures due 2028 (the "Debentures") issued
by the Company. The Capital Securities and the Common Securities will be issued
pursuant to the Amended and Restated Declaration of Trust of the Trust, to be
dated as of Closing Time (the "Declaration"), among the Company, as Sponsor, The
First National Bank of Chicago, as institutional trustee (the "Institutional
Trustee"), First Chicago Delaware Inc., as Delaware trustee (the "Delaware
Trustee"), and Xxxxxx X. XxXxxxx, Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxxxxx, as
regular trustees (the "Regular Trustees" and together with the Institutional
Trustee and the Delaware Trustee, the "Trustees"), and the holders from time to
time of undivided beneficial interests in the assets of the Trust. The
Debentures will be issued pursuant to an Indenture, dated as of December 18,
1998 (the "Indenture"), between the Company and The First National Bank of
Chicago as trustee (the "Indenture Trustee"), as supplemented by a Supplemental
Indenture to be dated as of Closing Time (the "Supplemental Indenture"), between
the Company and the Indenture Trustee. The Capital Securities, the Capital
Securities Guarantee and the Debentures are collectively referred to herein as
the "Securities." Capitalized terms used herein without definition have the
respective meanings specified in the Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3 (No.
333-62905), including the related preliminary prospectus, 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 Rule 430A ("Rule 430A") of the 1933 Act Regulations, if
applicable, and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations or (ii) if the Company has elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information". Such registration statement, including
the exhibits thereto, schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective and including the Rule 430A Information and the Rule
434 Information, as applicable, is herein called the "Registration Statement."
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement",
and after such filing, the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Capital Securities is herein called the "Prospectus." 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.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Company and the Trust. The
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time referred to in
Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company and the Trust, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof, and at the Closing Time, the Registration
Statement, the Rule 462(b) Registration Statement, 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 Xxxxxx Brothers expressly for use
in the Registration Statement or Prospectus or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification on Form T-1 (the "Forms T-1) under the Trust Indenture Act of the
Indenture Trustee, the Institutional Trustee and the Guarantee Trustee.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and 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.
(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the date hereof and at the
time the Prospectus was issued and at the Closing Time, did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows
of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C)
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock, except for
dividends paid by the Company in the ordinary course of business
consistent with past practice.
(vi) Good Standing of the Company. Each of the Company and the
subsidiaries of the Company listed on Schedule B hereto, (the
"Significant Subsidiaries") has been duly incorporated and is validly
existing as a corporation or national banking association in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
the Company is duly qualified to do business as a foreign corporation
under the laws of the State of New York and the laws of the
Commonwealth of Massachusetts; and neither the Company nor any
Significant Subsidiary is required to be qualified to do business as a
foreign corporation under the laws of any other jurisdiction, and the
Company is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended.
(vii) Existence of Trust. The Trust has been duly created and is
validly existing in good standing as a business trust under the
Delaware Act, is and will be treated as a "grantor trust" for federal
income tax purposes under existing law, has the business trust power
and authority to conduct its business as presently conducted and as
described in the Prospectus, and is not required to be authorized to
do business in any other jurisdiction.
(viii) Common Securities. The Common Securities have been duly
authorized by the Declaration and, when issued and delivered by the
Trust to the Company in accordance with the terms of the Declaration
and against payment therefor as described in the Prospectus, will be
validly issued and (subject to the terms of the Declaration) fully
paid and nonassessable undivided beneficial interests in the assets of
the Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; no holder thereof will be subject
to personal liability by reason of being such a holder; and at the
Closing Time, all of the issued and outstanding Common Securities of
the Trust will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(ix) Authorization of Declaration. The Declaration has been duly
authorized by the Company and duly qualified under the 1939 Act and,
when validly executed and delivered by the Company and the Regular
Trustees, and assuming the due authorization, execution and delivery
of the Declaration by the Delaware Trustee and the Institutional
Trustee, the Declaration will constitute a valid and binding
obligation of the Company and the Regular Trustees, enforceable
against the Company and the Regular Trustees in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(x) Guarantee Agreements. The Capital Securities Guarantee
Agreement has been duly authorized by the Company and duly qualified
under the 1939 Act and, when validly executed and delivered by the
Company, and assuming due authorization, execution and delivery of the
Capital Securities Guarantee Agreement by the Guarantee Trustee, will
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(xi) Capital Securities. The Capital Securities have been duly
authorized by the Declaration and, when authenticated in the manner
provided for in the Declaration and issued and delivered pursuant to
this Agreement against payment of the consideration set forth herein,
will be validly issued and (subject to the terms of the Declaration)
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust; the issuance of the Capital Securities is not
subject to preemptive or other similar rights; and holders of Capital
Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
incorporated under the General Corporation Law of the State of
Delaware.
(xii) Authorization of Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and,
when duly executed and delivered by the Company and assuming the due
authorization, execution and delivery of the Indenture by the
Indenture Trustee, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(xiii) Authorization of Debentures. The Debentures have been duly
authorized by the Company, and when executed, authenticated, issued
and delivered in the manner provided for in the Indenture and sold and
paid for as provided in this Agreement, the Debentures will constitute
valid and binding obligations of the Company entitled to the benefits
of the Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiv) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
(xv) Absence of Defaults and Conflicts. The execution and
delivery by the Company and the Trust of, and the performance by the
Company and the Trust of their obligations under, this Agreement, the
execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Declaration, the Capital
Securities Guarantee Agreement and the Indenture, the issuance and
delivery by the Trust of the Common Securities and Capital Securities
and the consummation of the sale of the Capital Securities and the
fulfillment of the terms herein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under (in each case material to the Company and its
subsidiaries (including the Trust) considered as a whole or as to the
Trust separately), any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease, financing agreement or other similar
agreement or instrument to which the Company or any of its
subsidiaries (including the Trust) is a party or by which the Company
or any of its subsidiaries (including the Trust) is bound or to which
any of the property or assets of the Company or any of its
subsidiaries (including the Trust) is subject, nor will such actions
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or the Declaration of the
Trust, nor will such actions result in any violation (in each case
material to the Company and its subsidiaries (including the Trust)
considered as a whole or as to the Trust separately) of any statute or
any order, rule or regulation of any court or regulatory authority or
other governmental body having jurisdiction over the Trust or the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for, and the absence of
which would materially affect, the performance by the Company and the
Trust of their obligations under this Agreement and the issuance and
delivery of the Capital Securities, except such approvals as will be
obtained under the 1933 Act, the 1934 Act or the 1939 Act and as may
be required by the securities or Blue Sky laws of the various states
or the securities laws of non-U.S. jurisdictions in connection with
the sale of the Capital Securities.
(xvi) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company or the Trust, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets of the
Company and its subsidiaries taken as a whole or the consummation of
the transactions contemplated in this Agreement or the performance by
the Company or the Trust of its obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them,
except for such Governmental Licenses the absence of which would not
cause a Material Adverse Effect; the Company and its subsidiaries are
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or
in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Compliance with Cuba Act. The Company and the Trust have
complied with, and is and will be in compliance with, the provisions
of that certain Florida act relating to disclosure of doing business
with Cuba, codified as Section 517.075 of the Florida statutes, and
the rules and regulations thereunder (collectively, the "Cuba Act") or
is exempt therefrom.
(xix) Investment Company Act. Neither the Company nor the Trust
is, and upon the issuance and sale of the Capital Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus neither will be, an "investment company"
or an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) Capital Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the purchase price of $979.77 per Capital Security, the number of Capital
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional number of Capital Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, subject,
in each case, to such adjustments among the Underwriters as they in their sole
discretion shall make to eliminate any sales or purchases of fractional
securities. As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Capital Securities
will be used to purchase the Debentures, the Company hereby agrees to pay at the
Closing Time to the Underwriters a commission of $10.00 per Capital Security
purchased by the Underwriters.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Capital Securities shall be made at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Underwriters, the
Company and the Trust, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriters, the Company and the Trust (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Capital Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representative, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the Capital Securities which it has agreed to purchase. Xxxxxx
Brothers, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Capital
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
At Closing Time the Company will pay, or cause to be paid, the commission
payable at such time under this Section 2 to Xxxxxx Brothers on behalf of the
Underwriters by wire transfer of immediately available funds.
(c) Denominations; Registration. Certificates for the Capital Securities
shall be in such denominations and registered in such names as the
Representative may request in writing at least two full business days before the
Closing Time. The certificates for the Capital Securities will be made available
for examination and packaging by the Representative in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time.
SECTION 3. COVENANTS OF THE COMPANY AND THE TRUST.
The Company and the Trust jointly and severally covenant with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company and the Trust, subject to Section 3(b), will comply with the
requirements of Rule 424, Rule 430A or Rule 434, as applicable, and will notify
the Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any prospectus, or of the suspension of the qualification
of the Capital Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
Company and the Trust will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company and the Trust will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
Representative notice of their intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents to, and consult with, the
Representative 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 Representative or counsel for the Representative
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 1934 Act, copies of
which such filings the Company will cause to be delivered to the Representative
promptly after being transmitted for filing with the Commission.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representative and counsel for the Representative, 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 Representative,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for the Representative.
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.
(d) Delivery of Prospectuses. The Company will deliver to each Underwriter,
without charge, as many copies of the Prospectus as such Underwriter reasonably
requests, and the Company and the Trust hereby consent to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the Trust
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Capital Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters and for the Company or Trust, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company and the Trust will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Trust will each use its
best efforts, in cooperation with the Underwriters, to qualify the Capital
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Underwriters may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date hereof; provided, however, that neither the Company
nor the Trust shall be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Capital Securities have
been so qualified, the Company and the Trust will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
hereof. The Company and the Trust will also supply the Underwriters with such
information as is necessary for the determination of the legality of the Capital
Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 7 days from the
date of the Prospectus, neither the Company nor the Trust will, without the
prior written consent of Xxxxxx Brothers, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any Capital Securities or
Debentures (or any equity or debt securities substantially similar to the
Capital Securities or Debentures, respectively). The foregoing sentence shall
not apply to the Capital Securities or Debentures to be sold hereunder.
(i) Reporting Requirements. The Company and the Trust, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
SECTION 4 PAYMENT OF EXPENSES.
(a) Expenses. The Company will pay all expenses incident to the performance
of its and the Trust's obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Capital Securities, (iii) the preparation, issuance and delivery of the
certificates for the Capital Securities to the Underwriters, including any stock
or other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Capital Securities to the Underwriters, (iv) the
fees and disbursements of the Company's and the Trust's counsel, accountants and
other advisors, (v) the qualification of the Capital Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, if any, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, if any, (viii) the fees and expenses of any transfer agent or registrar
for the Capital Securities, (ix) the fees and expenses of the Indenture Trustee,
including the fees and disbursements of counsel for the Indenture Trustee in
connection with the Indenture and the Debentures, (x) the fees and expenses of
the Delaware Trustee, the Institutional Trustee and the Guarantee Trustee,
including the fees and disbursements of counsel for the Delaware Trustee, the
Institutional Trustee and the Guarantee Trustee, (xi) any fees payable in
connection with the rating of the Capital Securities and the Debentures and
(xii) the cost and charges associated with the approval of the Capital
Securities by The Depositary Trust Company for "book-entry" transfer; provided,
however, that the Underwriters agree to reimburse the expenses payable by the
Company in connection with the offering of the Capital Securities, estimated at
$312,500.
(b) 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.
SECTION 5 CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company and the Trust
contained in Section 1 hereof or in certificates of any officer of the Company
or any Trustee delivered pursuant to the provisions hereof, to the performance
by the Company and the Trust of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus shall have
been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of Xxxxxxx
& Xxxxxx, counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters substantially to the effect set forth in
Exhibit A hereto and to such further effect as counsel to the Underwriters may
reasonably request. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(c) Opinion of Special Delaware Counsel for the Trust. At Closing Time, the
Representative 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.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the validity of the Capital Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York, the federal law of the United States, the Business
Trust Act of the State of Delaware and the General Corporation Law of the State
of Delaware, upon the opinions of counsel satisfactory to the Underwriters. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(e) Officers' Certificates. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, (A) any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representative 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 Representative 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.
(f) Accountant's Comfort Letter. At the Closing Time, the Representative
shall have received from KPMG Peat Marwick LLP ("KPMG") a letter dated such
date, in form and substance satisfactory to the Representative, together with
signed or reproduced copies of such letter for each of the Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(g) Lock-up Agreements. At the date of this Agreement, the Representative
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the Company and the Trust.
(h) Maintenance of Rating. At Closing Time, the Capital Securities shall be
rated at least a2 by Xxxxx'x Investors Service, Inc. and [BBB] by Standard &
Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and the Company shall
have delivered to the Underwriters a letter dated the Closing Time, from each
such rating agency, or other evidence satisfactory to the Representative,
confirming that the Capital Securities have such ratings; and since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Capital Securities or any of the Company's capital 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 capital securities.
(i) Additional Documents. At Closing Time counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Capital Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company and Trust
in connection with the issuance and sale of the Capital Securities as herein
contemplated shall be satisfactory in form and substance to the Representative
and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to Closing Time and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6 INDEMNIFICATION.
(a) Indemnification of Underwriters. Each of the Company and the Trust
jointly and severally agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxx
Brothers), 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 Xxxxxx Brothers expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Trust by Company. The Company agrees to indemnify
the Trust against all loss, liability, claim, damage and expense whatsoever as
due from the Trust under Section 6(a) hereunder.
(c) Indemnification of Trust, Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, the Company's directors, each of the Company's officers and the Trustee
of the Trust who signed the Registration Statement, and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
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 Xxxxxx Brothers expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxx Brothers, and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company, in each case reasonably
acceptable to the indemnifying party. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any 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.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein;
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Trust on the one hand and the
Underwriters on the other hand from the offering of the Capital Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Trust on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions,
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust on the one hand
and the Underwriters on the other hand in connection with the offering of the
Capital Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Trust on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Trust and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company and the Trustee of the
Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Capital Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8 REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or the Trustees of the Trust or
any of its other subsidiaries submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Capital Securities to the
Underwriters.
SECTION 9 TERMINATION OF AGREEMENT.
(a) Termination; General. The Representative 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 Representative, impracticable to
market the Capital Securities or to enforce contracts for the sale of the
Capital Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10 DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at Closing Time to purchase
the Capital Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative 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 Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Capital Securities to be purchased on such date, each of
the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Capital Securities to be purchased on such date, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Representative 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.
SECTION 11 NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Representative shall be directed to
Xxxxxx Brothers at American Express Tower, 19th Floor, World Financial Center,
New York, New York 10285, attention of General Counsel; 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.
SECTION 12 PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and the Trust and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Company
and the Trust and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and the Trust and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13 GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14 EFFECT OF HEADINGS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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/ Authorized Signatory
-------------------------
Name:
Title:
FLEET CAPITAL TRUST V
By: /s/ Authorized Signatory
-------------------------
Name:
Title: Regular Trustee
By: /s/ Authorized Signatory
-------------------------
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXX BROTHERS INC.
By: XXXXXX BROTHERS INC.
By:---------------------------------
Authorized Signatory
Acting on behalf of the Underwriters named in Schedule A annexed hereto.
SCHEDULE A
Number of Capital
Name of Underwriter Securities
Xxxxxx Brothers Inc. 147,500
Chase Securities Inc. 45,000
Xxxxxxx, Xxxxx & Co. 45,000
Xxxxxxxx & Partners, L.P. 12,500
Total 250,000
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:
(i) 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.
(ii) All the outstanding shares of the capital stock of the
Significant Subsidiaries have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss. 55
in the case of Fleet National Bank and Fleet Bank, National
Association) nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the Significant
Subsidiaries are owned by the Company, free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests claims, liens or encumbrances.
(iii) 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.
(iv) 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).
(v) 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).
(vi) 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).
(vii) The Capital Securities Guarantee Agreement has been duly
authorized, executed and delivered by the Company, and is a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(viii) The Indenture, Capital Securities Guarantee Agreement and
the Declaration have each been duly qualified under the 1939 Act.
(ix) The holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights under the Articles
of Incorporation or By-Laws of the Company or the laws of the State of
Rhode Island to subscribe for the Capital Securities or the
Debentures.
(x) 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.
(xi) The statements made in the Prospectus under the captions
"Description of the Capital Securities", "Description of the
Guarantee", "Description of the Junior Subordinated Debentures" and
"Effect of Obligations Under the Junior Subordinated Debentures and
the Guarantee", insofar as such statements purport to summarize
certain provisions of the Capital Securities, the Common Securities,
the Debentures, the Capital Securities Guarantee, the Indenture, the
Declaration, the Capital Securities Guarantee Agreement and the
Articles of Incorporation of the Company, to the extent that they
constitute matters of law or legal conclusions, have been reviewed by
such counsel and fairly summarize the information required to be
disclosed therein.
(xii) Neither the issue and sale by the Trust of the Capital
Securities, nor the consummation of any other of the transactions
contemplated by the Purchase Agreement nor the fulfillment of the
terms in the Purchase Agreement will conflict with, result in a breach
of, or constitute a default under the charter or by-laws of the
Company or the organizational documents or Declaration of the Trust or
the terms of any indenture or other agreement or instrument known to
such counsel and to which the Company or any of its subsidiaries is a
party or bound, or any order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of any
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries.
(xiii) Neither the Company nor the Trust is required to be
registered under the Investment Company Act of 1940, as amended.
(xiv) 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.
(xv) Such counsel has been orally advised by the Commission that
the Registration Statement was declared effective under the 1933 Act
on September 24, 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.
(xvi) 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 1933 Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Capital Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained.
(xvii) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement,
except for certain piggyback registration rights with respect to the
common stock of the Company.
(xviii) The Registration Statement, as of its effective date, and
the Prospectus, as of its date, appeared on their face to be
appropriately responsive in all material respects to the requirements
of the 1933 Act and the 1933 Act Regulations, except that in each case
such counsel need not express an opinion as to the financial
statements, schedules and other financial and statistical data
included therein or excluded therefrom or the exhibits to the
Registration Statement, and such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
except for those made under the captions "Description of Capital
Securities", "Description of the Guarantee", "Description of the
Junior Subordinated Debentures", "Effect of Obligations Under the
Junior Subordinated Debentures and the Guarantee", and "Description of
Capital Stock" in the Prospectus insofar as they relate to provisions
of documents therein described.
Additionally, in giving its opinion, such counsel shall state that such
counsel has participated in conferences with representatives of the
Underwriters, officers and other representatives of the Company and
representatives of the independent certified public accountants of the Company,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and although such counsel does
not pass upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except and only to the extent as set forth in
paragraphs (xxviii) above), on the basis of the foregoing (relying as to
materiality to a large extent upon the discussions with and representations and
opinions of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead such counsel to believe that
the Registration Statement at the time it became effective or at the date hereof
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date or the date of such
opinion, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that such
counsel does not express any comment with respect to the financial statements
including the notes thereto and supporting schedules, or any other financial and
statistical data set forth or referred to in the Registration Statement or the
Prospectus.
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:
(i) 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.
(ii) 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.
(iii) the Capital 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 Capital 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 Capital
Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
We bring to your attention, however, that the holders of Capital
Securities may be obligated, pursuant to the 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 Capital Securities and the issuance
of replacement Capital 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.
(iv) the issuance of the Capital Securities is not subject to
preemptive or other similar rights under the Delaware Act or the
Amended and Restated Declaration.
(v) 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.
(vi) the statements made in the Prospectus under the caption
"Description of the Capital Securities" insofar as such statements
constitute summaries of Delaware law are accurate in all material
respects.
Exhibit C
Form of lock-up pursuant to Section 5(g)
_______, 1998
XXXXXX BROTHERS INC.
Chase Securities Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxxxx & Partners, L.P.
c/x Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by Fleet Financial Group, Inc.
Ladies and Gentlemen:
The undersigned, Fleet Financial Group, Inc., a Rhode Island corporation
(the "Company") and Fleet Capital Trust V, a Delaware Statutory business trust
(the "Trust") understand that Xxxxxx Brothers Inc. ("Xxxxxx Brothers"), Chase
Securities Inc., Xxxxxxx, Xxxxx & Co. and Xxxxxxxx & Partners, L.P. propose to
enter into a Purchase Agreement (the "Purchase Agreement") with the Company and
the Trust, providing for the public offering of $250,000,000 of the Trust's
Floating Rate Capital Securities ("Capital Securities"). In connection with the
foregoing, the Company will deposit in the Trust its Floating Rate Junior
Subordinated Deferrable 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 Xxxxxx Brothers, directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any
Capital Securities, any security convertible into or exchangeable into or
exercisable for Capital Securities or Junior Subordinated Debentures or any debt
securities substantially similar to the Junior Subordinated Debentures or
equity securities substantially similar to the Capital Securities, whether now
owned or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or file any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of Capital Securities, any
security convertible into or exchangeable into or exercisable for Capital
Securities or Junior Subordinated Debentures or any debt securities
substantially similar to the Junior Subordinated Debentures or equity
securities substantially similar to the Capital Securities, whether any such
swap or transaction is to be settled by delivery of Capital Securities, Junior
Subordinated Debentures or other securities, in cash or otherwise.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By:
_________________________________________
Name:
Title:
FLEET CAPITAL TRUST V
By:
_________________________________________
Name:
Title: Regular Trustee
By:
_________________________________________
Name:
Title: Regular Trustee
