<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 1997
REGISTRATION STATEMENT NO. _______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BARNETT BANKS, INC.
(Exact name of Registrant as specified in its charter)
FLORIDA 59-0560515
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
50 NORTH LAURA STREET
JACKSONVILLE, FLORIDA 32202
(904) 791-7720
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
--------------------
CHARLES E. RICE
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
BARNETT BANKS, INC.
50 NORTH LAURA STREET
JACKSONVILLE, FLORIDA 32202
(904) 791-7720
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------
Copies to:
HALCYON E. SKINNER, ESQ.
MAHONEY ADAMS & CRISER, P.A.
50 NORTH LAURA STREET
JACKSONVILLE, FLORIDA 32202
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Title of Each Class Amount to Be Proposed Maximum Aggregate Proposed Maximum Amount of
of Securities To Be Registered Offering Price Per Unit * Aggregate Offering Registration Fee *
Registered Price *
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock par value 8,000,000 Shares $46.01 $368,080,000 $111,539.39
$2.00 per share (including
preferred stock purchase
rights) **
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
* The maximum aggregate offering price is estimated solely for the purpose of
determining the registration fee. The registration fee is based on the
average of the high and low prices for Barnett Banks, Inc. Common Stock
(the "Common Stock") reported on the New York Stock Exchange on February 7,
1997.
** There is also being registered hereunder associated rights to purchase
shares of Barnett Banks, Inc.'s Junior Participating Preferred Stock, par
value $0.10 per share, which rights are (a) not currently exercisable and
(b) not currently separable from shares of Common Stock. In addition, this
registration statement includes such indeterminate number of shares of
Common Stock as may be issuable as a result of stock splits or similar
transactions.
</TABLE>
This Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
BARNETT BANKS, INC.
COMMON STOCK, $2.00 PAR VALUE
8,000,000 SHARES
This Prospectus relates to the resale, from time to time, by U.S. Trust
Company of California, N.A., as trustee (the "Trustee") of the Barnett Banks,
Inc. Trust Under Executive Benefit Plan (the "Trust") of up to 8,000,000 shares
of common stock, $2.00 par value (the "Common Stock"), of Barnett Banks, Inc.
(the "Company") contributed by the Company to the Trust (such 8,000,000 shares
being referred to as the "Shares"). The Company established the Trust and
authorized the issuance of the Shares into the Trust in order to secure certain
benefits payable to participants under nonqualified compensation and benefit
plans of the Company.
The Shares may be offered for sale by the Trust from time to time on the
New York Stock Exchange or in the over-the-counter market, in one or more
negotiated transactions, by or through brokers or dealers, or in any combination
of the foregoing. The Shares may be sold at a fixed offering price, at market
prices prevailing at the time of sale or at negotiated prices. The Trustee will
receive the net proceeds of the sale of any Shares. The Company will receive no
proceeds pursuant to the sale of the Shares. All expenses of registration
incurred in connection with this offering will be borne by the Company.
The Common Stock of the Company is listed, and application will be made to
list the Shares, on the New York Stock Exchange under the symbol "BBI". The
closing price of the Common Stock on the New York Stock Exchange on February 7,
1997 was $46.25 per share.
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in this Prospectus or
any Prospectus Supplement and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or the Trust or any underwriter, dealer or agent. Neither this Prospectus nor
any Prospectus Supplement constitutes an offer to sell or a solicitation of an
offer to buy any of the Shares offered hereby in any jurisdiction to any person
to whom it is unlawful to make such offer in such jurisdiction. Neither the
delivery of this Prospectus or any Prospectus Supplement nor any sale hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS FEBRUARY 12, 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the
Commission's public reference room located at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the public reference facilities in the
Commission's regional offices located at: Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661; and Seven World
Trade Center, New York, New York 10048. Copies of such materials can be
obtained at prescribed rates by writing to the Securities and Exchange
Commission, Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549. Certain of the Company's securities are listed on the New York
Stock Exchange, Inc. ("NYSE"), and reports, proxy statements and other
information concerning the Company may be inspected at the offices of the
NYSE, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the Common Stock offered hereby. This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Such additional information may
be obtained from the public reference room of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549. Statements contained in the Prospectus
or in any document incorporated by reference in this Prospectus as to the
contents of any contract or other document referred to herein or therein are
not necessarily complete, and in each instance reference is made to the copy
of such contract or other document filed as an exhibit to the Registration
Statement or such other document, each such statement being qualified in all
aspects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated, as of their respective filing dates, by reference in this
Prospectus.
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1995, as amended by the Company's Annual Report on Form 10-K/A
filed on February 14, 1996;
(b) the Company's Reports on Form 10-Q for the quarters ended March 31,
1996, June 30, 1996 and September 30, 1996;
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(c) the Company's Current Reports on Form 8-K dated February 5, 1996,
February 29, 1996, March 4, 1996, March 21, 1996, January 14, 1997 and
January 24, 1997;
(d) the description of the Company's Common Stock contained in its
Registration Statement on Form 8-A, filed with the Commission on
December 12, 1979; and
(e) the description of the Company's Junior Participating Preferred Stock
Purchase Rights, as amended, contained in its Registration Statement
on Form 8-A, filed with the Commission on July 12, 1990.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the Common Stock hereby shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated herein by reference shall be deemed to be modified
or superseded for purposes hereof to the extent that a statement contained
herein or in any other subsequently filed document which also is, or is deemed
to be, incorporated herein by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed to constitute
a part hereof, except as so modified or superseded.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, ON THE REQUEST OF SUCH
PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS DESCRIBED ABOVE UNDER
"INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE" (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS). REQUESTS SHOULD BE DIRECTED TO:
BARNETT BANKS, INC.
CORPORATE COMMUNICATIONS DEPARTMENT
50 NORTH LAURA STREET
JACKSONVILLE, FL 32202
(904) 791-5516
THE COMPANY
The Company, organized in 1930, is a multi-bank holding company
headquartered in Jacksonville, Florida, providing financial services to
consumers and businesses through bank and non-bank subsidiaries. The
principal bank, Barnett Bank, N.A., and its subsidiaries engage in retail
financial services, commercial banking, trust and investment management
services. Indirect auto lending is carried out in several southern states.
Mortgage lending is conducted through retail and wholesale offices
nationwide. Other banking activities are concentrated in Florida and southern
Georgia. The principal non-bank subsidiary of the Company is EquiCredit
Corporation, which engages in consumer finance nationwide. On September 30,
1996 the Company had total assets of $41.3 billion and total deposits of $33.2
billion. On that date, the Company was the 23rd largest bank holding company in
the United States and the largest bank holding company in Florida.
As a bank holding company, the Company is subject to regulation and
supervision by the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") under the
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Bank Holding Company Act of 1956, as amended. The bank subsidiaries of the
Company are subject to regulation and supervision by the state banking
authorities of the state in which the subsidiary is organized, the Office of
the Comptroller of the Currency, the Federal Reserve Board and/or the Federal
Deposit Insurance Corporation. The principal source of funds for the payment
of dividends by the Company is dividends paid by the Company's subsidiaries.
The amount of dividends that each subsidiary bank of the Company may pay is
limited by state and federal laws and regulations.
The Company's nonbanking activities are also supervised by the Federal
Reserve Board. In addition, Barnett Banks Insurance, Inc. is subject to
insurance laws and regulations of the Florida Department of Insurance. The
activities of Barnett Investments, Inc. are governed by the Commission, the
National Association of Securities Dealers and state securities laws.
The principal executive offices of the Company are located at 50 North
Laura Street, Jacksonville, Florida 32202. Its mailing address is Post Office
Box 40789, Jacksonville, Florida 32203, and its telephone number is (904)
791-7720.
USE OF PROCEEDS
The Shares are being offered hereby for the account of the Trust.
Accordingly, the Company will not receive any proceeds from the sale of the
Shares.
SELLING SHAREHOLDER
The Shares are offered hereby for the account of the Trust. The Company
authorized the issuance of up to 12,000,000 shares of Common Stock to be
contributed to the Trust from time to time pursuant to its terms. The Trust was
established on December 5, 1996, by the Company to provide security for certain
nonqualified deferred compensation benefits for employees of the Company. As of
February 7, 1997, the Trust owned 8,000,000 shares of Common Stock, representing
4.32% of the total outstanding shares of Common Stock. The Company's Executive
Compensation and Management Development Committee is authorized to determine the
desirability and timing of contributing to the Trust all or any portion of the
additional 4,000,000 shares of Common Stock authorized. Assuming that no
further shares are contributed to the Trust and all shares offered hereby are
sold, the Trust will beneficially own no shares of Common Stock after the
completion of this offering.
Subject to the terms and restrictions of the Trust, the Trustee has the
right to exercise all rights associated with the assets of the Trust, except
that the Trustee is required (i) to vote the Shares in the same proportion that
all other shareholders of Common Stock vote their shares of Common Stock and
(ii) to waive dividend rights with respect to the Shares. Moreover, in the case
of a tender offer for the Common Stock, the Trustee shall have no right to
tender the Shares.
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Subject to terms and restrictions of the Trust, including restrictions
on the ability of the Trust to sell the Shares prior to a Change in Control
(as defined in the Trust), the Trustee may determine the timing and amount of
any future sale of the Shares. Until a Change in Control has occurred, the
Company may, on notice of a proposed sale of Shares by the Trustee, elect to
purchase such Shares from the Trustee at fair market value, as defined in the
Trust.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Trust in one or more
transactions (which may involve block transactions) on the New York Stock
Exchange, in the over-the-counter market, on any exchange on which the Common
Stock may then be listed, in negotiated transactions or any combination of
such methods of sale. In addition, any of the Shares that qualify for sale
pursuant to Rule 144 promulgated under the Securities Act may be sold under
Rule 144 rather than pursuant to this Prospectus. There is no assurance that
the Trust will sell any or all of the Shares. The Shares may be sold at
market prices prevailing at the time of sale or at negotiated prices. The
Trust may effect such transactions directly or by selling Shares to or
through broker-dealers, and such broker-dealers may sell the shares as agent
or may purchase such shares as principal and resell them for their own
account pursuant to this Prospectus. Such broker-dealers may receive
compensation in the form of discounts, concessions, or commissions from the
Trust and/or purchasers of Shares (which compensation may be in excess of
customary commissions and may be changed from time to time).
If required at the time that a particular offer of Shares is made, a
Prospectus Supplement will be delivered that sets forth any material
arrangements for the distribution of the Shares and the terms of the
offering, including, without limitation, the public offering or purchase
price of such Shares and any discounts, commissions or concessions allowed or
paid to underwriters, dealers or agents. The Shares may be purchased to be
re-offered to the public through underwriting syndicates led by one or more
managing underwriters, or through one or more underwriters acting alone,
which underwriters may, if permissible, be affiliates of the Company or the
Trustee. The underwriter or underwriters with respect to an underwritten
offering of the Shares will be named in the Prospectus Supplement relating to
such offering and, if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover page of such
Prospectus Supplement. Unless otherwise set forth in the applicable
Prospectus Supplement relating to an underwritten offering of the Shares, the
obligations of the underwriters named therein to purchase Shares will be
subject to certain conditions precedent, and each of the underwriters with
respect to a sale of Shares will be obligated to purchase all of its
allocated Shares if any are purchased.
In connection with the sale of the Shares, the Trust and any
participating brokers or dealers may be deemed to be underwriters as defined
in the Securities Act and any commissions or discounts and other compensation
received by them may be deemed underwriting compensation under the Securities
Act.
Underwriters, agents and their controlling persons may be entitled,
under agreements entered into with the Company and the Trustee, to
indemnification by the Company and the Trustee against certain civil
liabilities, including liabilities under the Securities Act.
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Certain of the underwriters and/or agents and their affiliates may be
customers of, including borrowers from, engage in transactions with, and
perform services for, the Company or the Trustee in the ordinary course of
business.
If so indicated in the applicable Prospectus Supplement, the Trustee and
the Company will authorize dealers or other persons acting as the Trust's
agents to solicit offers by certain institutions to purchase Shares from the
Trust pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial
and savings bank, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Trust and the Company. The obligations
of any purchaser under any such contract will not be subject to any
conditions except that (i) the purchase of the Shares shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject, and (ii) if the Shares are also being sold to
underwriters, the Trust shall have sold to such underwriters the Shares not
sold for delayed delivery. The dealers and such other persons will not have
any responsibility in respect to the validity or performance of such
contracts.
The Company will bear all expenses incurred in connection with the
registration and qualification of the Shares.
LEGAL OPINIONS
The validity of the Shares will be passed upon for the Company by
Mahoney Adams & Criser, P.A. (a professional corporation), Jacksonville,
Florida, counsel for the Company. Marshall M. Criser, a director of the
Company, is a member of the firm of Mahoney Adams & Criser, P.A.
EXPERTS
The financial statements incorporated in this Prospectus and elsewhere
in the Registration Statement by reference to the Annual Report on Form 10-K
for the year ended December 31, 1995, as amended by the Company's Annual
Report on Form 10-K/A filed on February 14, 1996, have been audited by Arthur
Andersen LLP, independent certified public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
INDEMNIFICATION
The Company's Amended and Restated Articles of Incorporation and
Bylaws provide that the Company shall indemnify its directors and officers to
the extent authorized or permitted by the Florida Business Corporation Act.
In general, under the Florida law, a director or officer can under certain
circumstances be indemnified for judgments, fines, and amounts paid in
settlement as well as expenses incurred in relation to an action brought
against him in his corporate capacity so long as he acted in good faith and
in a manner he reasonably believed to be in or not opposed to best interests
of the Company. In addition, the Company has entered into contracts with all
of its directors providing for indemnification of such persons by the
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Company to the full extent authorized or permitted by law, subject to certain
limited exceptions. Insofar as indemnification under the Securities Act may
be permitted to directors, officers, or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in
the opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
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<PAGE>
No person is authorized to give any information or to make any
representation, other than those contained in this Prospectus, and any
information or representations not contained in this Prospectus must not be
relied upon as having been authorized. This Prospectus does not constitute
an offer to sell or solicitation of an offer to buy any securities other than
the registered securities to which it relates. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy such
securities under any circumstances where such an offer or solicitation is
unlawful. Neither the delivery of this Prospectus nor any sales made
hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date hereof or
that the information contained herein is correct as of any time subsequent to
its date.
TABLE OF CONTENTS
Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain
Information by Reference . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Selling Shareholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses will be incurred in connection with the issuance
and distribution of the Common Stock being registered, other than
underwriting discounts and commissions.
Securities and Exchange Commission
Registration Fee $111,539.39
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Blue Sky Fees and Expenses
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Accounting Fees and Expenses 5.000.00
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Legal Fees and Expenses 7,500.00
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Printing and Engraving Expenses
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Miscellaneous Expenses 2,500.00
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$
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All of the above items, except the registration fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles and Bylaws of the Corporation require the indemnification of
directors and officers to the fullest extent permitted by law.
Subsection (1) of Section 607.0850 of the Florida Business Corporation Act
(the "FBCA") empowers a corporation to indemnify any person who was or is a
party to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against liability
incurred in connection with such proceeding (including any appeal thereof) if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Subsection (2) of Section 607.0850 of the FBCA empowers a corporation to
indemnify any person who was or is a party to any proceeding by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth in the preceding paragraph,
against expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expenses of litigating the proceeding
to conclusion, actually and reasonably incurred in connection with the defense
or settlement of such proceeding, including appeals, provided that the person
acted under the standards set forth in the preceding paragraph. However, no
indemnification should be made for any claim, issue or
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matter as to which such person is adjudged to be liable unless, and only to
the extent that, the court in which such proceeding was brought, or any other
court of competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court deems proper.
Subsection (3) of Section 607.0850 of the FBCA provides that to the extent
a director or officer of a corporation has been successful on the merits or
otherwise in defense of any proceeding referred to in subsection (1) or (2) of
Section 607.0850 of the FBCA or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith.
Subsection (4) of Section 607.0850 of the FBCA provides that any
indemnification under subsection (1) or (2) of Section 607.0850 of the FBCA,
unless determined by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsection (1) or (2) of Section
607.0850 of the FBCA. Such determination shall be made:
(a) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(b) if such a quorum is not obtainable, or, even if obtainable, by
majority vote of a committee duly designated by the board of directors (in
which directors who are parties may participate) consisting solely of two
or more directors not at the time parties to the proceeding;
(c) by independent legal counsel:
(1) selected by the board of directors as prescribed in
paragraph (a) or the committee selected as prescribed in paragraph
(b); or
(2) if no quorum of directors can be obtained under paragraph
(a) or no committee can be designated under paragraph (b), by a
majority vote of the full board of directors (in which directors who
are parties may participate); or
(d) by the shareholders by a majority vote of a quorum of
shareholders who were not parties to such proceedings or, if no quorum is
obtainable, by a majority vote of shareholders who were not parties to such
proceeding.
Under subsection (6) of Section 607.0850 of the FBCA, expenses incurred by
a director or officer in defending a civil or criminal proceeding may be paid by
the corporation in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it is ultimately determined that such director or officer is not entitled to
indemnification under Section 607.0850 of the FBCA.
Subsection (7) of Section 607.0850 of the FBCA states that indemnification
and advancement of expenses provided under Section 607.0850 of the FBCA are not
exclusive and empowers the corporation to
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make any other or further indemnification or advancement of expenses under
any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, for actions in an official capacity and in other capacities while
holding an office. However, a corporation cannot indemnify or advance
expenses if a judgment or other final adjudication establishes that the
actions or omissions to act of the director or officer were material to the
adjudicated cause of action and the director or officer (a) violated criminal
law, unless the director or officer had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his conduct was
unlawful, (b) derived an improper personal benefit from a transaction, (c)
was or is a director in a circumstance where the liability under Section
607.0834 of the FBCA (relating to unlawful distributions) applies, or (d)
engaged in willful misconduct or conscious disregard for the best interests
of the corporation in a proceeding by or in right of the corporation to
procure a judgment in its favor or in a proceeding by or in right of a
shareholder.
Subsection (9) of Section 607.0850 of the FBCA permits any director or
officer who is or was a party to a proceeding to apply for indemnification or
advancement of expenses, or both, to any court of competent jurisdiction and
lists the determinations the court should make before ordering
indemnification or advancement of expenses.
Subsection (12) of Section 607.0850 of the FBCA permits a corporation to
purchase and maintain insurance for a director or officer against any
liability incurred in his official capacity or arising out of his status as
such regardless of the corporation's power to indemnify him against such
liability under Section 607.0850.
As allowed by Section 607.0850(12) of the FBCA, the Corporation
maintains liability insurance covering directors and officers.
ITEM 16. EXHIBITS.
The exhibits listed on the Exhibit Index on page II-9 of this Registration
Statement have been previously filed, are filed herewith, will be filed by
amendment, or are incorporated herein by reference to other filings.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion
II-4
<PAGE>
of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Jacksonville, State of Florida, on
the 12th day of February, 1997.
BARNETT BANKS, INC.
By: *
----------------------------------
Charles E. Rice, Chairman and
Chief Executive Officer
/s/ Hinton F. Nobles, Jr.
----------------------------------
Hinton F. Nobles, Jr.
Attorney-in-Fact
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
- --------- ----- ----
*
- --------------------- Director February 12, 1997
Walter H. Alford
*
- --------------------- Director February 12, 1997
Rita Bornstein
* Director February 12, 1997
- ---------------------
James L. Broadhead
*
- --------------------- Director February 12, 1997
Alvin R. Carpenter
*
- --------------------- Director February 12, 1997
Marshall M. Criser
- --------------------- Director February 12, 1997
Jack B. Critchfield
*
- ---------------------- Director February 12, 1997
Remedios Diaz Oliver
*
- ---------------------- President February 12, 1997
Allen L. Lastinger, Jr. Chief Operating
Officer and Director
* Controller
- ---------------------- (Principal Accounting February 12, 1997
Gregory M. Delaney Officer)
- --------------------- Director February 12, 1997
Clarence V. McKee
II-6
<PAGE>
SIGNATURE TITLE DATE
- --------- ----- ----
- --------------------- Director February 12, 1997
Thompson L. Rankin
* Chief Financial
- --------------------- Officer (Principal February 12, 1997
Charles W. Newman Financial Officer)
*
- --------------------- Chairman, Chief February 12, 1997
Charles E. Rice Executive Officer
and Director
(Principal Executive
Officer)
*
- --------------------- Director February 12, 1997
Frederick H. Schultz
*
- --------------------- Director February 12, 1997
Stewart Turley
*
- --------------------- Director February 12, 1997
John A. Williams
/s/ Hinton F. Nobles, Jr.
- -------------------------
Hinton F. Nobles, Jr.
Attorney-in-Fact
II-7
<PAGE>
EXHIBIT INDEX
PAGINATION IN
SEQUENTIAL
EXHIBIT EXHIBIT NUMBERING
NUMBER DESIGNATION SYSTEM
- -------- ----------- ---------------
(4)(a) Amended and Restated Articles of incorporated by
Incorporation of the Corporation. reference to
Exhibit 4(a) of
the Corporation's
Registration
Statement No. 33-
59246
(4)(b) Bylaws of the Corporation. incorporated by
reference to
Exhibit 4(b) to
the Corporation's
Registration
Statement No. 33-
64305
(4)(c) Rights Agreement. incorporated by
reference to
Exhibit (4)(c) to
the Corporation's
Registration
Statement No. 33-
36307
(4)(d) Trust under Executive Benefit Plan.
* (5) Opinion of Mahoney Adams & Criser, P.A.
as to the validity of the Common Stock.
(23)(a) Consent of Arthur Andersen LLP.
*(23)(c) Consent of Mahoney Adams & Criser, P.A.,
counsel to the Corporation (included in
Exhibit (5)).
(24)(a) Powers of Attorney.
(24)(b) Certified Resolutions of Board of
Directors authorizing Powers of Attorney.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
* To be filed by amendment
II-8
<PAGE>
BARNETT BANKS, INC.
TRUST UNDER EXECUTIVE BENEFIT PLAN
<PAGE>
TABLE OF CONTENTS
PAGE NO.
Section 1. Establishment of Trust........................................2
Section 2. Payments to Plan Participants and
Their Beneficiaries...........................................5
Section 3. Trustee Responsibility Regarding
Payments to Trust Beneficiary When
Company is Insolvent..........................................9
Section 4. Payments to Company..........................................11
Section 5. Investment Authority.........................................12
Section 5A. Sale of Company Stock by Trustee.............................16
Section 6. Disposition of Income........................................21
Section 7. Accounting by Trustee........................................21
Section 8. Responsibility of Trustee....................................21
Section 9. Compensation and Expenses of Trustee.........................23
Section 10. Resignation and Removal of Trustee...........................23
Section 11. Appointment of Successor.....................................24
Section 12. Amendment or Termination.....................................25
Section 13. Miscellaneous................................................27
Section 14. Effective Date...............................................33
<PAGE>
BARNETT BANKS, INC.
TRUST UNDER EXECUTIVE BENEFIT PLAN
THIS AGREEMENT made this 5th day of December, 1996, by and between
BARNETT BANKS, INC., a Florida corporation, as grantor hereunder ("Company"),
and U.S. TRUST COMPANY OF CALIFORNIA, N.A., a national banking association
("Trustee");
(a) WHEREAS, Company has adopted the nonqualified deferred compensation
plans as listed in Appendix A ("Plans");
(b) WHEREAS, Company has incurred or expects to incur liability under the
terms of such Plans with respect to the individuals participating in such Plans;
(c) WHEREAS, Company wishes to establish a trust ("Trust") for the benefit
of certain officers and certain key managers of Company and Company's affiliates
who participate in the Plans and to contribute to the Trust assets that shall be
held therein, subject to the claims of Company's creditors in the event of
Company's Insolvency (as herein defined) until full payment has been made in
respect of such obligations of Company to Plan participants and their
beneficiaries in such manner and at such time as specified in the Plans;
(d) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plans
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees or
as an excess benefit plan for purposes of Title I of the Employee Retirement
Income Security Act of 1974; and
(e) WHEREAS, it is the intention of Company to make contributions to the
Trust to provide itself with a source of funds to assist it in meeting its
liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF TRUST.
(a) Company hereby deposits with Trustee 8,000,000 shares of common stock
of Company, par value $2.00 per share ("Company Stock"), which shall become the
principal of the Trust to be held, administered and disposed of by Trustee as
provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
<PAGE>
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used exclusively
for the uses and purposes of Plan participants and general creditors as
herein set forth. Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of
the Trust. Any rights created under the Plans and this Trust Agreement shall
be mere unsecured contractual rights of Plan participants and their
beneficiaries against Company. Any assets held by the Trust will be subject
to the claims of Company's general creditors under federal and state law in
the event of Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property acceptable to
Trustee in trust with Trustee to augment the principal to be held,
administered and disposed of by Trustee as provided in this Trust Agreement.
Neither Trustee nor any Plan participant or beneficiary shall have any right
to compel any such additional deposits under this subsection (e).
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) Company, or the Trustee's Contractor (as hereinafter defined) if one
shall have been engaged, shall deliver to Trustee a schedule (a "Payment
Schedule") that indicates the amounts payable by Company in accordance with the
terms and conditions of the Plans in respect of each Plan participant (and his
or her beneficiaries), that provides a formula or other instructions acceptable
to Trustee for determining the amounts so payable, the form in which such amount
is to be paid (as provided for or available under the Plans), and the time of
commencement for payment of such amounts. Except as otherwise provided herein,
Trustee shall make payments to the Plan participants and their beneficiaries in
accordance with such Payment Schedule (to the extent such payments are not made
by Company pursuant to subsection (c) of this Section 2). Notwithstanding the
foregoing, if a benefit which is distributable in the form of Company Stock
under the terms of a Plan becomes payable at a time when there is no (or
insufficient) Company Stock in the Trust with which to satisfy such benefit
obligation and if the Company fails or refuses to pay such benefit within a
reasonable time after notice from Trustee that it has become so payable, Trustee
shall use other assets of the Trust to acquire Company Stock, on the open market
or otherwise in its discretion, sufficient to satisfy such benefit obligation.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits payable by Company under the Plans shall be determined in accordance
with the terms of the Plans by Company or such party as it shall designate under
the Plans, or the Trustee's Contractor if one shall have been engaged, and any
claim for such benefits shall be considered and reviewed and paid or not paid
under the procedures set out in the Plans. Neither Trustee nor Trustee's
Contractor shall have any obligation for determining whether any Plan
participant or beneficiary has died and shall be entitled to rely upon any
information in this regard furnished by Company.
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<PAGE>
(c) Company may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plans. Company
shall notify Trustee of its decision to make payment of benefits directly prior
to the time amounts are payable to participants or their beneficiaries. In
addition, if the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits payable by Company in accordance with
the terms of the Plans, Company shall make the balance of each such payment as
it falls due. Trustee shall notify Company where principal and earnings are not
sufficient.
(d) Company may engage a third party administrator as a contractor of the
Trustee (a "Trustee's Contractor"), who shall not be a Plan participant or
beneficiary (but who may be the Trustee), to perform functions described in this
Section 2(d) and elsewhere in this Trust Agreement which would otherwise be
performed by Company.
(1) Upon engagement of a Trustee's Contractor, as soon as practicable
but in no event longer than thirty (30) days thereafter, Company shall
furnish to the Trustee's Contractor copies of the Plan documents and other
information necessary to determine the benefits which are or may become
payable by Company to or with respect to each participant in each Plan,
including any benefits payable after the participant's death, and the
recipient of same and the procedures which Company has adopted to calculate
such benefit payments. Company shall regularly, at least annually, and
upon each benefit change under the Plans, furnish revised, updated
information to the Trustee's Contractor. In the event Company refuses or
neglects to provide updated participant information as contemplated herein,
the Trustee's Contractor shall be entitled to rely on the most recent
information furnished to it by Company.
(2) In the event of a Potential Change in Control (as hereinafter
defined), Company shall have the duty to engage, as soon as practicable
thereafter, a Trustee's Contractor reasonably acceptable to the Trustee if
there shall at that time be no Trustee's Contractor then serving. After a
Change in Control, Company shall not have any control or authority with
respect to the Trustee's Contractor so engaged or then serving, or any
successor Trustee's Contractor, including without limitation any rights
with respect to the removal or replacement of any such Trustee's Contractor
or its duties pursuant to this Trust Agreement.
(3) Unless Trustee agrees to perform the functions of the Trustee's
Contractor described herein, Trustee shall have no responsibility hereunder
for any obligation assigned to a Trustee's Contractor or (subject to
subsection (4) below) for the performance of a Trustee's Contractor's
duties and responsibilities under this Trust Agreement.
-3-
<PAGE>
(4) Company may replace or remove its Trustee's Contractor from time
to time serving hereunder, in its sole discretion, prior to the occurrence
of a Change in Control. Following a Change in Control, Trustee, in its
sole discretion, may remove a Trustee's Contractor engaged by Company or
any successor Trustee's Contractor and shall remove any such person and
engage a successor to such person if Trustee deems such person's
performance as a Trustee's Contractor unsatisfactory. At all times
following a Change in Control, upon any such removal, or the voluntary
resignation of any such Trustee's Contractor or the occurrence of any other
event which shall result in the cessation of performance of the Trustee's
Contractor's duties hereunder, Trustee shall use its best efforts to engage
a new Trustee's Contractor (which may be Trustee); provided, however,
Trustee shall perform the duties of the Trustee's Contractor during any
period for which Trustee is unable to find a new Trustee's Contractor (so
that there will be no default in payments under the Plans as a result of
the absence of a Trustee's Contractor), and any person engaged as a
Trustee's Contractor shall in the judgment of Trustee be independent of
Company. The person who removes or replaces a Trustee's Contractor shall
be responsible for assuring that there is a timely and complete transfer of
records from such Trustee's Contractor to such person's successor.
(5) Except for the records dealing solely with the assets of the
Trust and investment of those assets, which shall be maintained by the
Trustee, if a Trustee's Contractor shall be engaged, the Trustee's
Contractor shall maintain all Plan participant records contemplated by this
Agreement, including the Payment Schedule. All such records and copies of
the Plan documents and employment records of the participants in the
possession of the Trustee's Contractor shall be made available promptly
upon request of Trustee or Company. The Trustee's Contractor shall also
prepare and distribute participant statements to participants and
beneficiaries and shall perform such other duties and responsibilities
contemplated under the terms of this Trust Agreement as Company or Trustee,
as the case may be, determines is necessary or advisable to achieve the
objectives of this Trust Agreement.
(6) Company shall indemnify and hold harmless its Trustee's
Contractor for any liability or expenses, including without limitation
advances for or prompt reimbursement of reasonable fees and expenses of
counsel and other agents retained by it, incurred by the Trustee's
Contractor with respect to keeping the records for participants, benefits,
reporting thereon to participants and beneficiaries, certifying benefit
information to Trustee, determining the status of benefits hereunder and
otherwise carrying out its obligations under this Trust Agreement, other
than those resulting from Trustee's Contractor's negligence or willful
misconduct or its failure to reasonably calculate and certify the amount of
benefits based on the applicable terms of the Plan documents and other
information and procedures furnished by Company to the Trustee's Contractor
in accordance with this Trust Agreement. The Trustee's Contractor shall be
entitled to reasonable compensation for services
-4-
<PAGE>
hereunder, the amount of which shall be agreed upon from time to time by
Company or, following a Change in Control, the Trustee, and the
Trustee's Contractor in writing, and reimbursement for reasonable
expenses incurred in connection with its performance of such services.
Following a Change in Control, Trustee's good faith determination of
compensation to be paid to a Trustee's Contractor (including Trustee
when it acts in such capacity) shall be binding on the Company and each
other person having an interest in the Trust. All such compensation and
expenses shall be paid by the Company. If not so paid, such compensation
and expenses shall be paid by the Trustee from the assets of the Trust.
(7) Except as may be otherwise agreed by the Trustee's Contractor and
Company, or Trustee following a Change in Control, the Trustee's
Contractor's obligations are limited solely to those explicitly set forth
herein and the Trustee's Contractor shall have no responsibility, authority
or control, direct or indirect, over the maintenance or investment of the
Trust and shall have no obligation in respect of Trustee or the Trustee's
compliance with the Trustee's Contractor's certifications to Trustee.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY WHEN COMPANY IS INSOLVENT.
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they become due, or (ii) Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer of Company
shall have the duty to inform Trustee in writing of Company's Insolvency.
If a person claiming to be a creditor of Company alleges in writing to
Trustee that Company has become Insolvent, Trustee shall determine whether
Company is Insolvent and, pending such determination, Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Company's Insolvency, or
has received notice from Company or a person claiming to be a creditor
alleging that Company is Insolvent, Trustee shall have no duty to inquire
whether Company is Insolvent. Trustee may in all events rely on such
evidence concerning Company's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a determination
concerning Company's solvency.
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<PAGE>
(3) If at any time Trustee has determined that Company is Insolvent,
Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Company's general creditors. Nothing in this Trust Agreement shall in any
way diminish any rights of Plan participants or their beneficiaries to
pursue their rights as general creditors of Company with respect to
benefits due under the Plans or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this Trust Agreement
only after Trustee has determined that Company is not Insolvent (or is no
longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due from
Company to Plan participants or their beneficiaries under the terms of the Plans
for the period of such discontinuance, less the aggregate amount of any payments
made to Plan participants or their beneficiaries by Company in lieu of the
payments provided for hereunder during any such period of discontinuance.
SECTION 4. PAYMENTS TO COMPANY.
(a) Except as provided in Sections 3, 4(b), 4(c), 5(b) and 12(c) hereof,
Company shall have no right or power to direct Trustee to return to Company or
to divert to others any of the Trust assets before all payment of benefits have
been made to Plan participants and their beneficiaries pursuant to the terms of
the Plans to the extent such benefits are obligations of Company.
(b) Prior to a Change in Control, Trustee shall, if so instructed by
Company in writing within thirty (30) days after the actual filing of Company's
federal income tax return for a year, reimburse Company from the assets of the
Trust for federal, state or local income taxes, or any part thereof, which
Company certifies that it has paid, attributable to income of the Trust for such
year, as determined by Company, within thirty (30) days after receipt of such
request. No reimbursement for taxes pursuant to this Section 4(b) may be made
following a Change in Control.
(c) Notwithstanding any other provision of this Trust Agreement, including
without limitation Section 1(b) hereof, prior to a Change in Control Company
shall have the right with respect to each contribution to the Trust to cause
Trustee to return all or any portion of a contribution and any and all income on
such contribution to Company. Such right shall be exercised by giving written
notice to Trustee and shall be exercisable in a nonfiduciary capacity without
the approval or consent of Trustee or any other person. Such right shall expire
with respect to each contribution to the Trust upon the earlier of (i) thirty
days following the date on which the
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<PAGE>
contribution is made, (ii) the last day of the taxable year of Company in
which the contribution is made or (iii) a Change in Control. Company's right
under this Section 4(c) shall expire upon a Change in Control.
SECTION 5. INVESTMENT AUTHORITY.
(a) Except as otherwise provided in subsections (c), (d), (e) and (g) of
this Section 5 and in Section 5A hereof, the assets of the Trust shall be
invested and reinvested by Trustee, without distinction between principal and
income, at such time or times in such investments and pursuant to such
investment strategies or courses of action and in such shares and proportions,
as Trustee, in its sole discretion, shall deem advisable. Except as otherwise
provided herein, Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by Company. All rights associated with
assets of the Trust shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by, or rest with Plan
participants, except that (i) the Trustee shall vote Company Stock in the same
proportion that all other Company shareholders vote their shares of Company
Stock and voting rights with respect to all other Trust assets will be exercised
by Company and; (ii) Trustee shall waive dividend rights with respect to Company
Stock and all other dividend rights with respect to Trust assets will rest with
Company. Notwithstanding anything to the contrary contained herein, in the case
of a tender offer for Company Stock, the Trustee shall have no right to tender
shares of Company Stock held by the Trust.
(b) Company shall have the right at any time, and from time to time in its
sole discretion, to substitute assets of equal fair market value for any asset
held by the Trust. This right is exercisable by Company in a nonfiduciary
capacity without the approval or consent of any person in a fiduciary capacity.
In connection with any substitution of assets described in this Section 5(b),
Company Stock may not revert to Company in kind at any time following a voting
record date for any meeting of Company stockholders and before such meeting,
unless Trustee shall have voted such shares by proxy. Such reversion may occur
immediately following the stockholders meeting to which such record date
relates. Further, any such substitution may be made only out of property
available to the Company for the purchase of shares of stock under applicable
state law, as determined by Company.
(c) Subject to the provisions of Section 5A, investment authority over the
Trust's assets, or any portion thereof may be reserved by Company to itself from
time to time in its absolute discretion, prior to a Change in Control. Any such
reservation of discretionary authority by Company shall be communicated to
Trustee in writing. In this regard, unless Company notifies Trustee to the
contrary, Company shall act through its Management Development and Compensation
Committee of Company's Board of Directors or any other person who is authorized
to act on Company's behalf by a resolution of Company's Board of Directors.
Company shall furnish Trustee from time to time with a list of the names and
signatures of all persons authorized to so act. Notwithstanding anything to the
contrary contained herein, following a Change in Control,
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<PAGE>
Company may not reserve discretionary authority for the management and
control of any assets of the Trust and any prior reservation then in effect
shall immediately be nullified.
(d) Trustee shall be under no duty or obligation to review or to question
any direction of Company pursuant to authority reserved under subsection (c) of
this Section 5, or to review securities or any other property so held with
respect to prudence or proper diversification, or to make any suggestions or
recommendation to Company with respect to the retention or investment of any
such assets and shall have no authority to take any action or to refrain from
taking any action with respect to any such assets unless and until it is
directed to do so by Company. Notwithstanding anything to the contrary in this
Trust Agreement, Company does hereby discharge, indemnify and hold harmless
Trustee, its directors, officers, employees, and agents, from and against any
and all losses, costs, damages, claims, penalties, expenses (including
reasonable attorneys, fees and expenses) or liabilities arising in connection
with Trustee's administration of the Trust consistent with Section 5(c).
(e) Trustee shall be responsible for assuring the daily investment of cash
balances, if any, unless directed otherwise by the Company pursuant to authority
reserved in subsection (c) of this Section 5, so as to maintain uninvested cash
balances at a minimum.
(f) Without in any way limiting the powers and discretions conferred upon
Trustee by the other provisions of this Trust Agreement, Trustee (and Company
acting pursuant to authority reserved under subsection (c) of this Section 5)
shall be vested with the following powers and discretions (to be exercised in
light of the nature and purpose of this Trust) with respect to the assets of the
Trust subject to its management and control:
(1) To invest and reinvest in any property, real, personal or mixed,
wherever situated and whether or not productive of income or consisting of
wasting assets, including without limitation, common and preferred stocks,
bonds, notes, debentures (including convertible stocks and securities),
leaseholds, mortgages, certificates of deposit or demand or time deposits
(including any such deposits with Trustee), shares of investment companies
and mutual funds, interests in partnerships and trusts, insurance policies
and annuity contracts, and oil, mineral or gas properties, royalties,
interests or rights, without being limited to the classes of property in
which trustees are authorized to invest by any law or any rule of court of
any state and without regard to the proportion any such property may bear
to the entire amount of the Trust;
(2) To invest and reinvest all or any portion of the Trust
collectively through the medium of any common, collective or commingled
trust fund that may be established and maintained by Trustee, to be held
and invested subject to all of the terms and conditions thereof, and such
trust shall be deemed adopted as a part of the Trust to the extent that
assets of the Trust are invested therein;
-8-
<PAGE>
(3) To retain any property at any time received by the Trustee;
(4) To sell or exchange any property held by it at public or private
sale, for cash or on credit, to grant and exercise options for the purchase
or exchange thereof, to exercise all conversion or subscription rights
pertaining to any such property and to enter into any covenant or agreement
to purchase any property in the future;
(5) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan relating to property
held by it and to consent to or oppose any such plan or any action
thereunder or any contract, lease, mortgage, purchase, sale or other action
by any person;
(6) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary power,
thereto, and to pay part of the expenses and compensation thereof and any
assessments levied with respect to any such property so deposited;
(7) To extend the time of payment of any obligation held by it;
(8) To hold uninvested any monies received by it, without liability
for interest thereon until such monies shall be invested, reinvested or
disbursed;
(9) To exercise all voting or other rights with respect to any
property held by it and to grant proxies, discretionary or otherwise;
(10) For the purposes of the Trust, to borrow money from others, to
issue its promissory note or notes therefor, and to secure the repayment
thereof by pledging any property held by it;
(11) To manage, administer, operate, insure, repair, improve, develop,
preserve, mortgage, lease or otherwise deal with, for any period, any real
property or any oil, mineral or gas properties, royalties, interests, or
rights held by joining with others, using other Trust assets for any such
purposes, to modify, extend, renew, waive or otherwise adjust any provision
for amortization of the investment in or depreciation of the value of such
property;
(12) To employ suitable agents (including but not limited to actuarial
and employee benefit consulting firms) and counsel, who may be counsel to
Company or Trustee, and to pay their reasonable expenses and compensation
from the Trust to the extent not paid by Company;
-9-
<PAGE>
(13) To register any securities held in the Trust in the name of a
nominee and to hold any investment in bearer form, and to combine
certificates representing such investments with certificates of the same
issue held by the Trustee in other fiduciary capacities or to deposit or
arrange for the deposit of such securities in a qualified central
depository even though, when so deposited, such securities may be merged
and held in bulk in the name of the nominee of such depository with other
securities deposited therein by any other person, or to deposit or arrange
for the deposit of any securities issued by the United States Government,
or an agency or instrumentality thereof, with a federal reserve bank, but
the books and records of Trustee shall at all times show that all such
investments are part of the Trust;
(14) To settle, compromise, or submit to arbitration any claims,
debts, or damages due or owing to or from the Trust, respectively, to
commence or defend suits or legal proceedings to protect any interest of
the Trust, and to represent the Trust in all suits or legal proceedings in
any court or before any other body or tribunal; provided, however, Trustee
shall not be required to take any such action unless it shall have been
indemnified by Company or the Trust to its reasonable satisfaction against
liability and expense it might incur therefrom;
(15) To organize under laws of any state a corporation or trust for
the purpose of acquiring and holding title to any property which it is
authorized to acquire hereunder and to exercise with respect thereto any or
all of the powers set forth herein; and
(16) Generally, to do all acts consistent with its duties hereunder,
whether or not expressly authorized, that Trustee may deem necessary or
desirable for the protection of the Trust.
(g) Notwithstanding anything to the contrary contained herein (other than
the provisions of Section 5A hereof), unless and until directed otherwise by
Company, or the occurrence of a Change in Control, the assets of the Trust shall
be invested exclusively in the Company Stock except to the extent that Company
directs otherwise with respect to a portion of the assets in anticipation of
reasonable liquidity needs of the Trust. With respect to assets of the Trust
invested in Company Stock, Trustee shall have no obligation to diversify
investments in the Trust, and shall not be subject to any rule of applicable law
which might otherwise make necessary, require, or in any way deem appropriate
diversification of investments in the Trust, all such rules being hereby
expressly waived. Notwithstanding anything to the contrary in this Trust
Agreement, Company does hereby discharge, indemnify and hold harmless Trustee,
its directors, officers, employees and agents, from and against any and all
losses, costs, damages, claims, penalties, expenses (including reasonable
attorneys' fees and expenses) or liabilities arising in connection with such
Trustee's administration of the Trust consistent with this Section 5(g).
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(h) Following a Change in Control, Trustee may no longer invest in Company
Stock or any other securities or obligations issued by Company, and Section 5(g)
shall no longer apply. After a Change in Control, Trustee shall have and
exercise all discretionary authority for the management and control of Trust
assets and shall commence the orderly disposition of Company Stock, subject to
the provisions of Section 5A hereof to the extent applicable. Trustee may, in
its sole discretion, retain Company Stock acquired prior to a Change in Control
for such period of time as Trustee deems appropriate and in the best interest of
participants and beneficiaries in the Plans. In no event may Trustee make
additional investments in Company Stock on behalf of the Trust after a Change in
Control, other than (i) amounts held in diversified common investment vehicles
in which Trustee invests, and (ii) through the exercise of rights to acquire
Company Stock attributable to shares held at the time of the Change in Control,
in the Trustee's sole discretion, if the Trustee deems such exercise appropriate
and in best interest of the participants and beneficiaries in the Plans.
SECTION 5A. SALE OF COMPANY STOCK BY TRUSTEE.
(a) Except as otherwise specifically permitted herein, Trustee may not
sell Company Stock except: (1) as necessary from time to time to satisfy benefit
obligations under the Plans which are required to be paid by Trustee under this
Trust; or (2) following a Change in Control; and then only as specifically
permitted herein.
(b) Trustee shall provide Company with not less than thirty (30) days
prior notice that it proposes to sell any Company Stock, unless Trustee
determines in good faith that such delay would cause irreparable harm to Trustee
or to the Trust, in which event Trustee shall provide reasonable notice of such
proposed sale. Notice shall be given by telephone, confirmed promptly by
facsimile or first class mail, postage prepaid. Trustee shall specify in any
event the number of shares proposed to be sold.
(c) Trustee shall make sales of Company Stock pursuant to an effective
registration statement under, or an exemption (including but not limited to Rule
144) from, the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and in compliance with applicable state
securities laws.
(d) In the event the Company Stock has been registered pursuant to the
Securities Act, Company shall:
(1) from time to time within the period of effectiveness of the
registration statement (i) immediately advise Trustee of any event or
development, including a material adverse change in the financial
condition, business or affairs of Company, known to Company (other than
events or developments affecting market or economic conditions
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generally), which may have a material adverse impact on the proposed
offering; and (y) within the period of effectiveness of such registration
statement, advise Trustee of any event or development requiring amendment
or supplement (which amendment or supplement shall be prepared with
reasonable promptness by Company) of the registration statement or
prospectus used in connection therewith or rendering it inadvisable to
use the prospectus until it is supplemented or amended; and
(2) furnish to Trustee such number of copies of any preliminary and
final prospectuses and any amendments and supplements thereto as Trustee
may reasonably request.
(e) With respect to such registration, Trustee and Company may negotiate
with an underwriter selected or approved by Company with regard to the
underwriting of such requested registration. Company shall enter into an
underwriting agreement in customary form with the underwriter(s) and Trustee in
which Company and Trustee (to the extent applicable based only on such
information as is provided in writing by Trustee) shall provide customary
indemnification to such underwriter(s) and each other.
(f) Trustee shall provide all such information and materials and take all
such actions, furnish all such information, execute all such documents and
cooperate with Company in good faith, all as may be reasonably required in order
to permit Company to comply with all applicable requirements of the Commission
and all other applicable laws or regulations and to obtain acceleration of the
effective date of any registration statement.
(g) All expenses incurred in connection with any registration,
qualification or compliance pursuant to this Trust Agreement, including without
limitation, all registration, filing and qualification fees, printing and
engraving expenses, fees and disbursements of counsel for Company, and expenses
of any special audits or comfort letters incidental to or required by such
registration, shall be borne by Company.
(h) Notwithstanding any contrary provision of this Agreement, if a delay
in filing or effectiveness of a registration statement under the Securities Act
would prevent the Trustee from selling Company Stock expeditiously enough to
meet the Trustee's good faith needs, or if a registered sale would not permit
Trustee to sell Company Stock expeditiously enough to meet Trustee's good faith
needs, and Company determines, upon written advice of counsel, that a proposed
sale of Company Stock could not reasonably be made pursuant to an exemption from
the Securities Act, then Trustee may demand that Company purchase the Company
Stock desired to be sold at fair market value, which shall be the volume
weighted average trading price (including only trades which would meet the time
of purchases conditions under Rule 10b-18 ("Rule 10b-18") under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), of a share of such
security on the New York Stock Exchange on the day that Company receives such
demand.
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Company and Trustee shall use their reasonable best efforts to agree as to
the prompt execution, closing and delivery of shares and proceeds therefor.
(i) Until a Change in Control, Company may, on notice of a proposed sale
by Trustee, whether or not exempt, elect to purchase such Company Stock from
Trustee at fair market value, as defined in Section 5A(h), and with the manner,
conditions, and closing of such sale to be agreed upon by Company and Trustee.
(j) Company shall be entitled to postpone the filing of any registration
statement and any amendment or supplement thereto, or to direct that Trustee
postpone any sale or put if (i) Company determines, in its reasonable business
judgment, that such filing, registration and offering, or sale or put, would
materially interfere with the likely success of a proposed purchase or sale of
securities by Company; or (ii) counsel for Company opines in writing that the
filing of such registration statement, amendment or supplement, or sale or put
would have a material adverse impact on any material ongoing or pending
transaction or program of Company or any of its subsidiaries or any other
circumstances; provided, that should such delays adversely affect the Trustee's
ability to pay benefits as contemplated by this Trust Agreement, then Company
shall advance such funds as may be reasonably needed by Trustee for such
proposed pending sale.
(k) Company and Trustee shall each cooperate in good faith and employ
their reasonable best efforts in permitting and effecting any purchase or sale
of Company Stock as contemplated in this Section 5A and each shall comply with
all applicable laws and regulations relating to the foregoing including, without
limitation, federal and state securities laws, rules and regulations issued
thereunder, and any other governmental or stock exchange requirements or
regulations relating thereto.
SECTION 6. DISPOSITION OF INCOME. During the term of this Trust, all
income received by the Trust, net of expenses and taxes, shall be accumulated
and reinvested.
SECTION 7. ACCOUNTING BY TRUSTEE. Trustee shall keep accurate and
detailed records of all investments, receipts, disbursements, and all other
transactions required to be made, including such specific records as shall be
agreed upon in writing between Company and Trustee. Within forty-five (45)
days following the close of each calendar year and within forty-five (45)
days after the removal or resignation of Trustee, Trustee shall deliver to
Company a written account of its administration of the Trust during such year
or during the period from the close of the last preceding year to the date of
such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description
of all securities and investments purchased and sold with the cost or net
proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities and other property
held in the Trust at the end of such year or as of the date of such removal
or resignation, as the case may be. In addition, as of the end of each
calendar month (referred to in this Trust as a
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valuation date, within ten (10) days after each such month-end, Trustee shall
deliver to Company a written account setting forth the value of the Trust's
assets, together with such other information as shall be agreed upon between
Company and Trustee.
SECTION 8. RESPONSIBILITY OF TRUSTEE.
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided, however, that Trustee shall incur
no liability to any person for (i) any action taken pursuant to a direction,
request or approval given by Company or a Trustee's Contractor which is
contemplated by, and in conformity with, the terms of the Plans or this Trust
and is given in writing by Company or a Trustee's Contractor (other than Trustee
when it acts as Trustee's Contractor), or (ii) the investment in, or retention
of, Company Stock pursuant to the terms of this Agreement, and no such action
shall be considered a breach of the fiduciary standard herein set forth. In the
event of a dispute between Company or a Trustee's Contractor and a party,
Trustee may apply to a court of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust or the Plans (including without limitation any action to compel
Company to take any action under the Trust or the Plans, or to determine
Trustee's obligations hereunder), Trustee shall be indemnified by Company
against Trustee's costs, expenses and liabilities (including, without
limitation, reasonable attorneys, fees and expenses) relating thereto and
Company shall be primarily liable for such payments, other than those arising
from Trustee's negligence or willful misconduct. The Company will, upon notice,
pay monthly in arrears to or on behalf of the Trustee, all reasonable attorneys'
fees and expenses incurred by the Trustee. In the event that the Trustee is
determined to have incurred any liability as a result of the Trustee's
negligence or willful misconduct, the Trustee will promptly reimburse the
Company for all legal fees and expenses paid by the Company to or on behalf of
the Trustee.
(c) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals (who may also serve the same roles
for the Company generally) to assist it in performing any of its duties or
obligations hereunder.
(e) Trustee shall have, without exclusion, all powers consistent with the
terms hereof conferred on trustees by applicable law, unless expressly provided
otherwise herein, provided, however, that if an insurance policy is held as an
asset of the Trust, Trustee shall have no power to name a beneficiary of the
policy other than the Trust, to assign the policy (as distinct from
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conversion of the policy to a different form) other than to a successor
Trustee, or to loan to any person the proceeds of any borrowing against such
policy.
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
(g) The Company has represented to the Trustee that each Plan qualifies as
either (i) an excess benefit plan within the meaning of Section 4(b) of ERISA or
(ii) a "top-hat" plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
which is exempt from the provisions of Part 4 of Title I of ERISA. The Trustee
is entering into this Agreement in reliance upon the Company's representation.
Accordingly, in the event that any Plan fails to qualify as an excess benefit
plan or a top-hat plan exempt from ERISA, then notwithstanding any other
provision of this Agreement to the contrary, the Company will indemnify and hold
the Trustee harmless from all liabilities, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) that
the Trustee incurs as a result of a breach of fiduciary duty under ERISA arising
from any action taken, or omitted to be taken, by the Trustee in good faith in
accordance with this Agreement. The Company will, upon notice, pay monthly in
arrears to or on behalf of the Trustee, all reasonable attorneys' fees and
expenses incurred by the Trustee. In the event that the Trustee is determined
to have incurred any liability as a result of the Trustee's negligence or
willful misconduct, the Trustee will promptly reimburse the Company for all
legal fees and expenses paid by the Company to or on behalf of the Trustee.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE. All administrative
and Trustee's fees as agreed upon between Trustee and Company and reasonable
expenses actually incurred by the Trustee in performing its duties hereunder
shall be paid by Company. If not so paid, the fees and expenses shall be paid
by Trustee from the assets of the Trust and, until so paid, shall constitute a
lien on the assets of the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to Company, which
shall be effective sixty (60) days after receipt of such notice unless Company
and Trustee agree otherwise; provided that in no event shall any such
resignation take effect prior to the appointment of a successor Trustee.
(b) Trustee may be removed by Company on sixty (60) days notice or upon
shorter notice accepted by Trustee.
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(c) Upon a Change in Control, as defined herein, Trustee may not be
removed by Company for two (2) years.
(d) If Trustee resigns or is removed within two (2) years of a Change in
Control, as defined herein, Trustee shall select a successor Trustee in
accordance with the provisions of Section 11(b) hereof prior to the effective
date of Trustee's resignation or removal. Upon the appointment and acceptance
by, and transfer of assets to, a successor Trustee, Trustee shall have no
further responsibilities under this Trust Agreement.
(e) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within sixty (60) days after receipt of notice
of resignation, removal or transfer, unless Company extends the time limit.
(f) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 11 hereof, by the effective date of resignation or
removal under paragraphs (a) or (b) of this section. If no such appointment has
been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
SECTION 11. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns or is removed in accordance with Section 10(a) or
(b) or (c) hereof, Company may, subject to Section 10(d), appoint any third
party, such as a bank trust department or other party that may be granted
corporate trustee powers under state or federal law, as a successor to replace
Trustee upon resignation or removal. The appointment shall be effective when
accepted in writing by the new Trustee, who shall have all the rights and powers
of the former Trustee, including ownership rights in the Trust assets. The
former Trustee shall execute any instrument necessary or reasonably requested by
Company or the successor Trustee to evidence the transfer.
(b) If Trustee resigns or is removed pursuant to the provisions of Section
10(a), (b), (c) or (d) hereof and selects a successor Trustee pursuant to
Section 10(d) hereof, Trustee may appoint any third party such as a bank trust
department or other party that may be granted corporate trustee powers under
state or federal law. The appointment of a successor Trustee shall be effective
when accepted in writing by the new Trustee. The new Trustee shall have all the
rights and powers of the former Trustee, including ownership rights in Trust
assets. The former Trustee shall execute any instrument necessary or reasonably
requested by the successor Trustee to evidence the transfer.
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(c) A former Trustee shall prepare and deliver to Company and to the
successor Trustee a final accounting unless Company waives Company's right to
such accounting, and such accounting shall be effective through the date of the
former Trustee's transfer of all assets to its successor. The successor Trustee
need not examine the records and acts of any prior Trustee unless requested to
do so by Company (and, after a Change in Control, unless the successor Trustee
in addition concludes that there is a reasonable basis for such request by
Company) and may retain or dispose of existing Trust assets, subject to Sections
5A, 7 and 8 hereof. Subject to the foregoing, the successor Trustee shall not be
responsible for and Company shall indemnify and defend the successor Trustee
from any claim or liability resulting from any action or inaction of any prior
Trustee or from any other past event, or any condition existing at the time it
becomes successor Trustee. The compensation arrangement for the successor
Trustee shall be reasonable in relation to the services to be performed by the
successor Trustee.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement (including Appendix A hereto) may be amended by a
written instrument executed by Trustee and Company. Notwithstanding the
foregoing, no such amendment shall conflict with the terms of the Plans as then
in effect or shall make the Trust revocable after it has become irrevocable in
accordance with Section 1(b) hereof.
(1) Furthermore, notwithstanding anything to the contrary in this
Trust Agreement (except as otherwise provided in this Section 12), (i)
prior to a Change in Control, no amendment shall be made to Section 1(d)
and Section 1(e), Section 2, Section 4, Section 5(h), Section 10(c),
Section 10(d), this Section 12(a), Section 13(d), Section 13(g), Section
13(j), and Section 13(k), and no deletion shall be made in Appendix A,
unless such amendment would not, in the opinion of counsel, have a material
and adverse effect on the rights or interests of adversely affected
participants; and (ii) following a Change in Control, no amendment shall be
made to any provision of this Trust Agreement (including Appendix A hereto)
unless such amendment would not, in the opinion of counsel, have a material
and adverse effect on the rights or interests of adversely affected
participants.
(2) The limitations contained in Section 12 (a) (1) shall not apply
with respect to any amendment which is reasonably necessary, in the opinion
of counsel, to preserve the status of the Trust as a grantor trust and the
status of the Plans as unfunded for federal income tax purposes and for
purposes of the Employee Retirement Income Security Act of 1974, as
amended, or to guard against an adverse impact on Plan participants or
beneficiaries and which, in the opinion of counsel, is drafted primarily to
preserve such status or to reduce or eliminate such adverse impact on such
person or persons.
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(3) In each instance in which an opinion of counsel is contemplated
in this Section 12(a) prior to a Change in Control, such opinion shall be
in writing and delivered to Trustee, rendered by a nationally recognized
law firm selected by Company, and in each instance in which an opinion of
counsel is contemplated in this Section 12(a) after a Change in Control,
such opinion shall be in writing and delivered to Trustee, rendered by a
nationally recognized law firm selected by the Trustee's Contractor.
Trustee may rely on all such opinions and determinations.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits from
Company pursuant to the terms of the Plans. Upon termination of the Trust any
assets remaining in the Trust shall be returned to Company.
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plans, Company may terminate
this Trust prior to the time all benefit payments under the Plans have been
made. All assets in the Trust at termination shall be returned to Company.
(d) Trustee may rely for purposes of this Section 12 on a certificate
furnished by Company prior to a Change in Control, and by the Trustee's
Contractor after a Change in Control, (i) with respect to subsection (b) of this
Section 12, that Plan participants and their beneficiaries are no longer
entitled to benefits pursuant to the terms of the Plans, and (ii) with respect
to subsection (c) of this Section 12, that the written approval of participants
or beneficiaries entitled to payment of benefits pursuant to the terms of the
Plans has been obtained.
SECTION 13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subject to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of California.
(d) For purposes of this Trust, a "Change in Control" shall be deemed to
have occurred if any one of the following conditions shall have been satisfied:
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(i) any person, as defined in Section 3(a)(9) of the
Exchange Act, as such term is modified in Sections 13(d) and 14(d) of
the Exchange Act (other than (A) Company or any of its affiliates (as
defined in Rule 12b-2 promulgated under the Exchange Act), or any
employee benefit plan established by any of the foregoing
(collectively, an "Employee Benefit Plan"), (B) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (C) a corporation owned, directly or indirectly, by
stockholders of Company in substantially the same proportions as their
ownership of Company) (a "Person"), is or becomes the beneficial owner
(as defined in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of securities of Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from Company) representing twenty-five percent (25%) or more
of the combined voting power of Company's then outstanding voting
securities;
(ii) during any period of up to two consecutive years (not
including any period prior to the Effective Date) individuals who, at
the beginning of such period, constitute the Board of Directors of
Company cease for any reason to constitute at least a majority
thereof, provided that any person who becomes a director subsequent to
the beginning of such period and whose nomination for election is
approved by at least two-thirds of the directors then still in office
who either were directors at the beginning of such period or whose
election or nomination for election was previously so approved (other
than a director (A) whose initial assumption of office is in
connection with an actual or threatened election contest relating to
the election of the directors of Company, as such terms are used in
Rule 14a-11 of Regulation 14A under the Exchange Act, or (B) who was
designated by a Person who has entered into an agreement with Company
to effect a transaction described in paragraphs (i), (iii) or (iv) of
this Subsection (d)), will be deemed a director as of the beginning of
such period;
(iii) the stockholders of Company approve a merger or
consolidation of Company with any other corporation (other than (A) a
merger or consolidation that would result in the voting securities of
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an Employee Benefit Plan, at least fifty-one
percent (51%) of the combined voting power of the voting securities of
Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of Company (or
similar transaction) in which no Person is or becomes the beneficial
owner (as defined in paragraph (i) of this Subsection (d)), directly
or indirectly, of securities of
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Company (not including in the securities beneficially owned by such
Person any securities acquired directly from Company) representing
twenty-five percent (25%) or more of the combined voting power of
Company's then outstanding voting securities); or
(iv) the stockholders of Company approve a plan of complete
liquidation of Company or any agreement for the sale or disposition by
Company of all or substantially all of Company's assets, other than a
sale or disposition by Company of all or substantially all of
Company's assets to an entity, at least seventy-five percent (75%) of
the combined voting power of the voting securities of which are owned
by persons in substantially the same proportions as their ownership of
Company immediately prior to such sale.
All references to provisions of the federal securities laws are to such
provisions as in effect on the Effective Date without regard to any subsequent
amendments of, changes to or revocation of such provisions.
(e) For purposes of this Trust Agreement, a "Potential Change in Control"
shall be deemed to have occurred if any one of the following conditions shall
have been satisfied:
(i) the Company enters into a definitive written agreement, the
consummation of which would result in the occurrence of a Change in
Control;
(ii) the Company or any Person publicly announces an intention to
take or to consider taking actions which, if consummated, would constitute
a Change in Control; or
(iii) any Person becomes the beneficial owner (as defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of the Company representing 15% or more of the combined voting
power of the Company's then outstanding securities.
(f) Upon the occurrence of a Change in Control or a Potential Change in
Control, the Company shall promptly give notice thereof to the Trustee.
(g) (1) After the execution of this Trust Agreement, Company shall
promptly file with Trustee, and following the appointment of a Trustee's
Contractor, Company shall promptly file with the Trustee's Contractor, a
certified list of the names and specimen signatures of the officers of Company
and any delegate authorized to act for it. Unless Company notifies Trustee to
the contrary, Company shall act through its Treasurer or any person who such
Treasurer authorizes in writing to act on his behalf or any other person who is
authorized to act on Company's behalf by a resolution of Company's Board of
Directors. Company shall promptly notify Trustee and the
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Trustee's Contractor, if applicable, of the addition or deletion of any
person's name to or from such list, respectively. Until receipt by Trustee
and/or the Trustee's Contractor of notice that any person is no longer
authorized so to act, Trustee or the Trustee's Contractor may continue to
rely on the authority of the person. All certifications, notices and
directions by any such person or persons to Trustee or the Trustee's
Contractor shall be in writing signed by such person or persons. Trustee and
the Trustee's Contractor may rely on any certification, notice or direction
of Company that the Trustee or the Trustee's Contractor reasonably believes
to have been signed by a duly authorized officer or agent of Company.
Trustee and the Trustee's Contractor shall have no responsibility for acting
or not acting in reliance upon any notification reasonably believed by
Trustee or the Trustee's Contractor to have been signed by a duly authorized
officer or agent of Company.
(g) (2) After the engagement of a Trustee's Contractor (other than
Trustee), the Trustee's Contractor shall promptly file with Trustee a certified
list of the names and specimen signatures of the officers of the Trustee's
Contractor and any delegate authorized to act for it. Trustee's Contractor shall
promptly notify Trustee of the addition or deletion of any person's name to or
from such list. Until receipt by Trustee of notice that any person is no longer
authorized so to act, Trustee may continue to rely on the authority of the
person. All certifications, notices and directions by any such person or
persons to Trustee shall be in writing signed by such person or persons.
Trustee may rely on any such certification, notice or direction of the Trustee's
Contractor that Trustee reasonably believes to have been signed by or on behalf
of a duly authorized officer or agent of the Trustee's Contractor. Trustee shall
have no responsibility for acting or not acting in reliance upon any
notification reasonably believed by the Trustee to have been signed by a duly
authorized officer or agent of the Trustee's Contractor.
(h) Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude another gender or number when a different gender
or number would be appropriate.
(i) This Trust Agreement shall be binding upon and inure to the benefit of
any successor(s) to Company and Trustee.
(j) This Trust Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which shall together
constitute only one Agreement.
(k) Communications to Trustee shall be sent to Dennis Kunisaki, or
to such other address as Trustee may specify in writing. No communication shall
be binding upon Trustee until it is received by Trustee. Communications to
Company and the Trustee's Contractor shall be sent to the principal offices of
Company or the Trustee's Contractor, as the case may be, or to such other
address as Company or the Trustee's Contractor, as applicable, may specify in
writing.
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(l) In the event the participants and beneficiaries in the Plans are
determined generally to be subject to federal income tax on any amount in the
Trust prior to the time of payment hereunder, the entire amount determined to be
so taxable shall be distributed by Trustee to each affected participant or
beneficiary. Company may, at its option, make such payments directly to
affected participants and beneficiaries. An amount shall be determined to be
subject to federal income tax upon the earliest of: (a) a final determination by
the United States Internal Revenue Service addressed to a participant or
beneficiary which is not appealed to the courts; (b) a final determination by
the United States Tax Court or any other federal court affirming any such
determination by the Internal Revenue Service; or (c) an opinion by counsel for
Company reasonably acceptable to Trustee addressed to Company and Trustee, that,
by reason of the Treasury Regulations, amendments to the Internal Revenue Code,
published Internal Revenue Service rulings, court decision or other substantial
precedent, amounts hereunder are generally subject to federal income tax prior
to payment; provided, that following a Change in Control, only an opinion by
counsel selected by the Trustee's Contractor may be accepted by Trustee for
purposes of (c). Company shall undertake at its sole expense to defend any tax
claims described herein which are asserted by the Internal Revenue Service
against any participant or beneficiary and which it determines would affect
participants or beneficiaries generally, including attorneys' fees and costs of
appeal, and shall have the sole authority to determine whether or not to appeal
any determination made by the Internal Revenue Service or by a lower court.
Company also agrees to reimburse any participant or beneficiary for any interest
or penalties in respect of tax claims hereunder which it determines would affect
participants or beneficiaries generally, upon receipt of documentation of same.
Any distributions from the Trust to a participant or beneficiary under this
Section 13(j) (other than reimbursements of interest or penalties referred to in
the preceding sentence) shall reduce the benefits payable to such participant
and/or beneficiary under the Plans.
(m) In the event that Company shall fail to satisfy any obligation of
Company to a Plan participant or beneficiary under this Trust Agreement, after
reasonable notice and demand with respect thereto, and one or more participants
or beneficiaries obtains a final determination by a court of competent
jurisdiction that Company has so failed, such participant(s) or beneficiary(ies)
shall be indemnified by the Company against reasonable and appropriate costs and
expenses (including without limitation reasonable attorneys' fees and expenses)
relating thereto and the Company shall be primarily liable for such payments.
Interest on any Plan benefit payments which such court determines have been
delayed to the extent interest or similar payments in an equal or greater amount
are not provided in the Plans or by the court or otherwise shall also be paid by
the Company. Such interest shall be calculated using a rate of interest equal
to the rate of interest on ten (10) year United States Treasury obligations, as
determined on the first day of each calendar quarter, compounded quarterly. If
such costs, expenses and interest are not paid by the Company in a reasonably
timely manner, such participant(s) or beneficiaries may obtain payment from the
Trust.
-22-
<PAGE>
(n) In the event that Trustee or Company make payments of benefits to Plan
participants as described herein, the respective payor shall make provision for
the reporting and withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits pursuant to the
terms of the Plans and shall pay amounts withheld to the appropriate taxing
authorities.
(o) Nothing herein shall be construed as restricting or limiting in any way
amendment of the Plans in accordance with the terms of the Plans.
SECTION 14. EFFECTIVE DATE. The effective date of this Trust Agreement
shall be the date of its execution set forth on page 1 of the Trust Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed and their respective corporate seals to be hereto affixed on
the date set forth on page 1 of this Trust Agreement.
BARNETT BANKS, INC.
By: /s/ DONNA LANGE
-------------------------------------
(CORPORATE SEAL) Title: Secretary, Employee Benefits
Committee
----------------------------------
ATTEST: /s/ ELIZABETH NANA
---------------------------
Title: Manager, Corporate Benefits
----------------------------
U.S. TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By: /s/ ROBERT S. CUMMINGS
-------------------------------------
Robert S. Cummings
(CORPORATE SEAL) Title: Senior Vice President
----------------------------------
-23-
<PAGE>
ATTEST: /s/ TERRY J. COLBERG
---------------------------
Terry J. Colberg
Title: Vice President
----------------------------
-24-
<PAGE>
APPENDIX A
Supplemental Executive Retirement Plan
Severance and Supplemental Tax Payments under the Company's Employment
Agreements
Supplemental Tax Payments Provided by Executive Option Agreements under the
Company's Long Term Incentive Plan
Management Security Plan
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Form S-3 registration statement of
our report dated January 10, 1996, incorporated by reference in Barnett
Banks, Inc.'s Form 10-K, as amended on Form 10-K/A, for the year
ended December 31, 1995, and to all references to our Firm included in
this registration statement.
/s/ ARTHUR ANDERSEN LLP
-----------------------------
Jacksonville, Florida
February 12, 1997
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of January,
1997.
/s/ Walter H. Alford
-----------------------------
Walter H. Alford
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 6th day of January,
1997.
/s/ Rita Bornstein
-----------------------------
Rita Bornstein
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 3rd day of January,
1997.
/s/ James L. Broadhead
------------------------------
James L. Broadhead
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of January,
1997.
/s/ Alvin R. Carpenter
-----------------------------------
Alvin R. Carpenter
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of January,
1997.
/s/ Marshall M. Criser
------------------------------
Marshall M. Criser
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of January,
1997.
/s/ Gregory M. Delaney
------------------------------
Gregory M. Delaney
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of January,
1997.
/s/ Allen L. Lastinger, Jr.
------------------------------
Allen L. Lastinger, Jr.
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of January,
1997.
/s/ Charles W. Newman
------------------------------
Charles W. Newman
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of January,
1997.
/s/ Remedios Diaz Oliver
------------------------------
Remedios Diaz Oliver
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of January,
1997.
/s/ Charles E. Rice
------------------------------
Charles E. Rice
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of January,
1997.
/s/ Frederick H. Schultz
------------------------------
Frederick H. Schultz
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of January,
1997.
/s/ Stewart Turley
------------------------------
Stewart Turley
(SEAL)
<PAGE>
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or Officer of
Barnett Banks, Inc. (the "Corporation") hereby constitutes and appoints Charles
E. Rice, Allen L. Lastinger, Jr., Charles W. Newman, Hinton F. Nobles, Jr., and
Gregory M. Delaney, and each or any of them, his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him and in his name, place and stead, to sign the Corporation's Registration
Statement on Form S-3 (or such other form as shall be appropriate) and any and
all amendments (including post-effective amendments) thereto covering the sale
of up to 8,000,000 (Eight Million) Shares of Common Stock, $2.00 par value, of
the Corporation pursuant to the Barnett Banks, Inc. Trust under Executive
Benefit Plan dated as of December 5, 1996, between the Corporation and U.S.
Trust Company of California, N.A., and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to effectuate the above purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 3rd day of January,
1997.
/s/ John A. Williams
------------------------------
John A. Williams
(SEAL)
<PAGE>
RESOLUTION D
BARNETT BANKS, INC.
RESOLUTIONS OF THE BOARD OF DIRECTORS
AS DULY ADOPTED AT A REGULAR MEETING HELD ON
AUGUST 21, 1996
AUTHORIZING THE CREATION OF FUNDED RABBI TRUSTS
TO SECURE PAYMENTS UNDER NON-QUALIFIED PLANS AND EXECUTIVE
EMPLOYMENT AGREEMENTS OF THE CORPORATION
WHEREAS, the Corporation has in place certain non-qualified plans for
the benefit of executive employees and directors of the Corporation
and its subsidiaries and has incurred contingent liabilities under
executive employment agreements (such plans and contingent liabilities
referred to collectively as the "Plans"), all for the benefit of the
directors and employees of the Corporation and its subsidiaries.
WHEREAS, the Plans provide that the beneficiaries have contractual
rights to benefits from the Corporation but the payment of such
benefits is not now funded or otherwise secured by assets.
WHEREAS, it is in the Corporation's best interest to provide
assurances to the Plan's beneficiaries that benefits under the Plans
will be paid when due.
RESOLVED, that the Board of Directors hereby authorizes and directs
the proper officers of this Corporation, upon advice of counsel, to
enter into one or more irrevocable trusts that qualify as "Rabbi"
trusts under applicable guidelines of the Internal Revenue Service
(the "Rabbi Trusts") for the purpose of securing benefits payable
under the Plans.
FURTHER RESOLVED, that the Board of Directors hereby authorizes and
directs the proper officers to determine which person or persons or
entity or entities should serve as Trustee under the Rabbi Trusts with
full power
<PAGE>
in the proper officers to substitute trustees as may be permitted by the
Rabbi Trust agreements.
FURTHER RESOLVED, that the Rabbi Trusts shall be entered into by the
proper officers upon their reasonable satisfaction with the tax and
accounting treatment to be afforded by the creation, funding,
operation and termination of the Rabbi Trusts.
FURTHER RESOLVED, that the term "Plans" shall mean: (i) the
Corporation's Directors' Retirement Plan; (ii) the Corporation's
Supplemental Executive Retirement Plan and Management Security Plan,
and any successors thereto;(iii) supplemental payments made under the
Long Term Incentive Plan; (iv) contingent liabilities under Executive
Employment Agreements triggered by a change in control of the
Corporation; and (v) such other non-qualified plans or contingent
liabilities as may be designated hereafter by the Executive
Compensation and Management Development Committee.
FURTHER RESOLVED, that should the Executive Compensation and
Management Development Committee determine to designate additional
Plans as contemplated hereby, such Committee has full authority to
authorize and create additional Rabbi Trusts and fund such trusts
within the limits contemplated by these resolutions without further
action by this Board.
FURTHER RESOLVED, that the Board of Directors authorizes the issuance
of up to 6,000,000 shares of the Corporation's Common Stock, par value
$2.00 per share (12,000,000 shares after giving effect to the stock
split authorized today) to fund the benefits provided under the Plans.
FURTHER RESOLVED, that the Rabbi Trusts be initially funded with
4,500,000 shares of Common Stock (9,000,000 shares after giving effect
to the stock split) with the authority given to the Corporation's
Executive Compensation and Management Development Committee to
determine the desirability and timing of contributing to the Rabbi
Trusts all or any portion of the remaining
<PAGE>
Common Stock authorized hereunder in its sole discretion without necessity
for further action by this Board.
FURTHER RESOLVED, that the Board of Directors hereby authorizes the
proper officers to prepare, execute and file with the United States
Securities and Exchange Commission a Registration Statement on the
appropriate form, and authorizes any and all amendments (including
post-effective amendments) and supplements thereto (including
prospectus and pricing supplements) with respect to the issuance of
the Common Stock authorized hereunder and the subsequent sale thereof
by the Trustee.
FURTHER RESOLVED, that the Board of Directors hereby authorizes the
Chairman and Chief Executive Officer (the principal executive
officer), the President and Chief Operating Officer, the Chief
Financial Officer (the principal financial officer), the Comptroller
(the principal accounting officer) and each director to execute
Special Powers of Attorney appointing Charles W. Newman, Hinton F.
Nobles, Jr., Paris Thermenos and Gregory M. Delaney, and each or any
of them as attorneys-in-fact to sign the aforementioned registration
statement and any and all amendments thereto on their behalf as
executive officers or directors, and to file the same with the
Securities and Exchange Commission, each of said attorneys and agents
to have power to act with or without the other and to do and perform
in the name and on behalf of each of said executive officers and
directors every act whatsoever and necessary or advisable to be done
as fully and to all intents and purposes as any such executive officer
or director might or could do in person.
FURTHER RESOLVED, that it may be necessary or desirable and in the
best interest of the Corporation that all or a portion of the Common
Stock issued hereunder be qualified or registered for sale or exchange
in various states and countries under the applicable securities laws
of those states or countries; that each or any of the proper officers
are hereby authorized to determine the state or countries in which the
appropriate action shall
<PAGE>
be taken to qualify or register for sale all or part of the Common Stock as
they deem necessary or advisable; that the proper officers are hereby
authorized to perform on behalf of the Corporation any and all such acts as
they may deem necessary or advisable in order to comply
with the applicable laws of any such state or country, and in connection
therewith to execute and file all requisite papers and documents,
including, but not limited to applications, reports, irrevocable consents
and appointments of attorneys for service of process; and that the
execution by such proper officers of any such paper or documents or the
doing by them of any act in connection with the foregoing shall
conclusively establish their authority for the Corporation and the approval
and ratification by the Corporation of the papers and documents so executed
and the action so taken.
FURTHER RESOLVED, that the Board of Directors hereby authorizes the
proper officers to prepare, execute and file an application to the New
York Stock Exchange for the listing of the Common Stock issued
pursuant to these resolutions.
FURTHER RESOLVED, that the Board of Directors hereby authorizes and
directs the proper officers in its name and on its behalf and to the
extent necessary under its seal to prepare, execute, deliver, file and
record all instruments, documents and other papers and to do all such
other acts and things in their discretion and with the advice of
counsel they may deem necessary or desirable to carry into effect the
foregoing resolutions.
/s/ Catherine C. Cosby
--------------------------------
Secretary
DATE: August 21, 1996
