As filed with the Securities and Exchange Commission on September 13, 1996
Registration No.333-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POGO PRODUCING COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 5 GREENWAY PLAZA, SUITE 2700
(STATE OR OTHER JURISDICTION OF HOUSTON, TEXAS 77046
INCORPORATION OR ORGANIZATION) (713) 297-5000
(Address, including zip code, and
telephone number, including area code,
of registrant's principal executive
offices)
74-1659398
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
GERALD A. MORTON
CORPORATE SECRETARY AND
ASSOCIATE GENERAL COUNSEL
POGO PRODUCING COMPANY
5 GREENWAY PLAZA, SUITE 2700
HOUSTON, TEXAS 77046
(713) 297-5000
(Name, address, including zip code, and telephone number
including area code, of agent for service)
WITH A COPY TO:
Stephen A. Massad., Esq.
Baker & Botts, L.L.P.
3000 One Shell Plaza
Houston, Texas 77002
(713) 229-1234
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
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]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the offering. ___________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER NOTE(1) OFFERING PRICE(1)(2) REGISTRATION FEE
- --------------------------- ---------- ----------- -------------------- ----------------
<S> <C> <C> <C> <C>
5 1/2% CONVERTIBLE
SUBORDINATED NOTES DUE 2006 $115,000,000 100% $115,000,000 $39,656
===========================================================================================================
</TABLE>
<PAGE>
(1) THE NOTES ARE TO BE OFFERED AT PRICES NOT PRESENTLY DETERMINABLE. THE
OFFERING PRICE IS ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE
REGISTRATION FEE BASED UPON THE PRICE AT WHICH THE NOTES WERE INITIALLY
SOLD.
(2) THERE IS ALSO REGISTERED HEREUNDER 2,726,087 SHARES OF THE REGISTRANT'S
COMMON STOCK, PAR VALUE $1 PER SHARE ("COMMON STOCK"), WHICH IS THE
NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE NOTES
BASED ON A CONVERSION PRICE OF $42.185 PER SHARE, AND THERE IS ALSO
BEING REGISTERED HEREBY SUCH INDETERMINABLE NUMBER OF ADDITIONAL SHARES
OF COMMON STOCK THAT MAY BE ISSUABLE UPON CONVERSION OF THE NOTES AS A
RESULT OF THE ANTIDILUTION PROVISIONS THEREOF.
The 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.
ii
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 13, 1996
PROSPECTUS $115,000,000
[LOGO] POGO PRODUCING COMPANY
5 1/2% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2006
The 5 1/2% Convertible Subordinated Notes due June 15, 2006 (the
"Notes") of Pogo Producing Company, a Delaware corporation (the "Company"), and
the shares of common stock, par value $1 per share, of the Company (the "Common
Stock") issuable upon conversion thereof (the Notes and the shares of Common
Stock issuable upon conversion thereof are sometimes referred to hereafter
collectively as the "Securities"), may be offered for sale from time to time for
the account of certain holders of the Securities (the "Selling Holders") as
described under "Selling Holders". The Notes were initially issued and sold
pursuant to a Purchase Agreement dated as of June 11, 1996 between Goldman,
Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(collectively, the "Initial Purchasers") and the Company. The Selling Holders
acquired the Notes from the Initial Purchasers or holders who acquired the Notes
from the Initial Purchasers or other prior holders thereof either (a) from the
Initial Purchasers in transactions complying with Rule 144A, Regulation D or
Regulation S under the Securities Act or (b) in other permitted resale
transactions exempt from registration under the Securities Act. The Company will
not receive any of the proceeds from the sale by the Selling holders of any of
the Securities. See "Use of Proceeds".
The Selling Holders may, from time to time, sell the Securities
offered hereby to or through one or more underwriters, directly to other
purchasers or through agents in ordinary brokerage transactions, in negotiated
transactions or otherwise, at market prices prevailing at the time of sale, at
prices related to then prevailing market prices or at negotiated prices. See
"Plan of Distribution". The Notes have been designated for trading on the PORTAL
System of the National Association of Securities Dealers, Inc. ("PORTAL"). The
Company intends to apply to have the shares of Common Stock issuable upon
conversion of the Notes listed on the New York Stock Exchange and the Pacific
Stock Exchange where the Company's common stock currently trades under the
symbol "PPP". See "Risk Factors -- Absence of Public Trading Market; Transfer
Restrictions".
The Notes are convertible at any time on or after September 16, 1996,
and prior to the close of business on the maturity date, unless previously
redeemed or repurchased, at a conversion price of $42.185 per share (equivalent
to a conversion rate of 23.7051 shares per $1,000 principal amount of Notes),
subject to adjustment upon the occurrence of certain events. See "Description of
Notes -- Conversion Rights". On September 11, 1996, the last reported sales
price of the Company's Common Stock, which is quoted on the New York Stock
Exchange under the symbol "PPP", was $35.625 per share.
Interest on the Notes is payable semi-annually in arrears on June 15
and December 15 of each year, commencing on December 15, 1996. The Notes are
redeemable at the option of the Company, on or after June 15, 1999, in whole or
in part, at the redemption prices set forth herein, plus accrued interest to the
redemption date. See "Description of Notes -- Redemption at Option of Company".
The Notes are not entitled to any sinking fund. The Notes will mature on June
15, 2006.
In the event of a Change in Control (as defined) constituting a
Repurchase Event (as defined), each holder of Notes may require the Company to
repurchase its Notes, in whole or in part, for cash or, at the Company's option,
Common Stock (valued at 95% of the average closing sales prices for the five
trading days immediately preceding the second trading day prior to the
repurchase date) at a repurchase price of 100% of the principal amount of Notes
to be repurchased, plus accrued interest to the repurchase date. See
"Description of Notes -- Certain Rights to Require Repurchase of Notes".
The Notes are unsecured obligations of the Company subordinated in
right of payment to all existing and future Senior Indebtedness (as defined) of
the Company and effectively subordinated in right of payment to all indebtedness
and other liabilities of the Company's subsidiaries. The Indenture (as defined)
will not restrict the Company or its subsidiaries from incurring additional
Senior Indebtedness or other indebtedness and liabilities. See "Description of
Notes -- Subordination".
Investors should review the information contained or incorporated by
reference herein. IN PARTICULAR SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED PRIOR TO INVESTING IN THE SECURITIES.
1
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 September ___, 1996.
2
AVAILABLE INFORMATION
The Company is subject to the informational 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 filed by the Company with the Commission may be
inspected and copied at the Public Reference Section of the Commission at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at
the following Regional Offices of the Commission: Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60601-2511; and New York Regional Office, Seven World Trade Center, New
York, New York 10048. Copies of such material may also be obtained from the
Public Reference Section of the Commission at its principal office at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Company's Common Stock is listed on the New York Stock Exchange and
the Pacific Stock Exchange. Consequently, the Company's registration statements,
reports, proxy statements and other information may also be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005 and the Pacific Stock Exchange, 301 Pine Street, San Francisco, California
94104. The Commission maintains an Internet web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission (http:\\www.sec.gov).
This prospectus (the "Prospectus"), which constitutes a part of a
registration statement on Form S-3 (the "Registration Statement") filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"), omits certain of the information set forth in the
Registration Statement. Reference is hereby made to the Registration Statement
and to the exhibits thereto for further information with respect to the Company
and the securities offered hereby. Statements contained herein concerning the
provisions of such documents are necessarily summaries of such documents, and
each such statement is qualified in its entirety by reference to the copy of the
applicable document filed with the Commission. Copies of the Registration
Statement and the exhibits thereto are on file at the offices of the Commission
and may be obtained upon payment of the fee prescribed by the Commission, or may
be examined without charge at the public reference facilities of the Commission
described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1995 (the "Annual Report"); the Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1996 and June 30, 1996; all other reports filed by
the Company pursuant to Sections 13(a) or 15(d) of the Exchange Act since
December 31, 1995 and the description of the Common Stock contained in the
Company's registration statement filed pursuant to Section 12(g) of the Exchange
Act, including any amendment or reports filed for the purpose of updating such
description filed by the Company, all of which are on file with the Commission
are incorporated in this Prospectus and made a part hereof.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to December 31, 1995 and prior to the
termination of the offering of the Securities hereunder by the Selling Holders
(the "Offering") shall be deemed to be incorporated by reference in this
Prospectus and to be part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed incorporated document or in any accompanying prospectus
supplement modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Copies of all documents incorporated herein by reference other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference) will be provided without charge to each person who receives a copy
of this Prospectus upon written or oral request to Gerald A. Morton, Corporate
Secretary and Associate General Counsel, Pogo Producing Company, P.O. Box 2504,
Houston, Texas 77252-2504 (telephone: (713) 297-5017).
3
--------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE 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.
FORWARD LOOKING STATEMENTS
This Prospectus and the reports and filings incorporated by reference
herein include "forward-looking statements" within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act. All statements included
herein and therein other than statements of historical fact are forward-looking
statements. Such forward-looking statements include, without limitation, the
statements herein and therein regarding the timing of future events regarding
the Company's operations in Thailand and the statements set forth in the reports
under the caption "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Liquidity and Capital Resources" regarding the
Company's anticipated future financial position and cash requirements. Although
the Company believes that the expectations reflected in such forward-looking
statements are reasonable, it can give no assurance that such expectations will
prove to have been correct. Important factors that could cause actual results to
differ materially from the Company's expectations ("Cautionary Statements") are
disclosed in this Prospectus and the reports, including without limitation in
connection with such forward-looking statements. All subsequent written and oral
forward-looking statements attributable to the Company or persons acting on its
behalf are expressly qualified in their entirety by the Cautionary Statements.
4
PROSPECTUS SUMMARY
THIS SUMMARY IS QUALIFIED IN ITS ENTIRETY BY, AND SHOULD BE READ IN
CONJUNCTION WITH, THE MORE DETAILED INFORMATION APPEARING ELSEWHERE IN THIS
PROSPECTUS OR INCORPORATED BY REFERENCE HEREIN. PROSPECTIVE INVESTORS SHOULD
CAREFULLY CONSIDER THE INFORMATION SET FORTH UNDER THE CAPTION "RISK FACTORS."
THE OFFERING
Issuer.................... Pogo Producing Company, a Delaware corporation.
Securities Offered........ $115,000,000 principal amount of 5
1/2%Convertible Subordinated Notes dUE June 15,
2006 issued under an indenture (the
"Indenture") between the Company and Fleet
National Bank, as trustee (the "Trustee"), and
Common Stock issuable upon conversion thereof.
Interest ................. Interest on the Notes is payable semi-annually
in arrears on June 15 and December 15 of each
year, commencing December 15, 1996.
Conversion Rights......... The Notes are convertible into shares of Common
Stock of the Company at any time on or after
September 16, 1996, and prior to the close of
business on the maturity date at the conversion
price set forth below. Holders (as defined in
the Indenture) of Notes called for redemption
are entitled to convert the Notes up to, but
not after, the close of business on the day
preceding the date fixed for redemption. The
conversion price is $42.185 per share
(equivalent to a conversion rate of
approximately 23.7051 shares per $1000
principal amount of Notes), subject to
adjustment upon the occurrence of certain
events. See "Description of Notes -- Conversion
Rights".
Subordination............. The Notes are unsecured and subordinated to
present and future Senior Indebtedness (as
defined) of the Company. The Notes are also
effectively subordinated in right of payment to
all indebtedness and other liabilities of the
Company's subsidiaries, including all
indebtedness and liabilities incurred by the
Company's wholly owned subsidiary Thaipo
Limited ("Thaipo") in connection with the
development of the Company's interest in the
Block B8/32 concession license located in the
Gulf of Thailand (the "Concession"). See "Risk
Factors -- Subordination of Notes; Leverage and
Debt Service". The Indenture does not restrict
the incurrence of Senior Indebtedness or other
indebtedness or liabilities by the Company or
any of its subsidiaries. See "Description of
Notes -- Subordination".
Optional Redemption....... The Notes are redeemable at the option of the
Company, in whole or in part, at any time on or
after June 15, 1999, at the redemption prices
set forth herein plus accrued interest to
redemption date. Accrued and unpaid interest to
the redemption date shall be payable with
respect to Notes that are converted after a
notice of redemption has been mailed and prior
to the redemption date. See "Description of the
Notes -- Redemption at Option of Company."
Repurchase at Holder's
Option................ Upon the occurrence of a Change in Control
constituting a Repurchase Event, each Holder of
Notes shall have the right, at the holder's
option, to require the Company to repurchase
such Notes at 100% of their principal amount,
plus accrued interest. The term Repurchase
Event is limited to certain transactions
involving a Change of Control (as defined) in
which (i) the market price of the Common Stock
at the time of, and the fair market value of
the consideration received in, such transaction
are less than 105% of the conversion price and
(ii)
5
the Notes become convertible into securities
other than publicly traded common stock. The
repurchase price is payable in cash or, at the
option of the Company but subject to the
satisfaction of certain conditions on the part
of the Company, in shares of Common Stock
(valued at 95% of the average closing sales
prices of the Common Stock for the five trading
days preceding the second trading day prior to
the repurchase date). See "Description of Notes
-- Certain Rights to Require Repurchase of
Notes".
Use of Proceeds........... The Company will not receive any of the
proceeds from the sale by the Selling Holders
of any of the Securities.
Governing Law............. The Indenture and the Notes are governed by the
laws of the State of New York.
Listings.................. The Notes have been designated for trading on
PORTAL. The Company intends to apply to have
the shares of Common Stock issuable upon
conversion of the Notes listed on the New York
Stock Exchange and the Pacific Stock Exchange
where the Company's common stock currently
trades under the symbol "PPP". On September 11,
1996, the last reported sale price of the
Common Stock on the New York Stock Exchange was
$35.625 per share.
For additional information concerning the Notes, see "Description of the Notes."
6
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION INCLUDED ELSEWHERE IN THIS
PROSPECTUS, THE FOLLOWING RISK FACTORS SHOULD BE CAREFULLY CONSIDERED IN
EVALUATING AN INVESTMENT IN THE NOTES OFFERED HEREBY AND THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION THEREOF. THIS PROSPECTUS CONTAINS CERTAIN
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES
ACT AND SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE
"EXCHANGE ACT"), WHICH INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S ACTUAL
RESULTS MAY DIFFER SIGNIFICANTLY FROM THE RESULTS DISCUSSED IN THE
FORWARD-LOOKING STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE INCLUDE,
BUT ARE NOT LIMITED TO, THOSE DISCUSSED IN THIS SECTION.
VOLATILITY OF OIL AND GAS MARKETS
The Company's profitability and cash flow are highly dependent upon the
prices of oil and natural gas, which historically have been seasonal, cyclical
and volatile. In general, prices of oil and gas are dependent upon numerous
factors beyond the control of the Company, including various weather, economic,
political and regulatory conditions. In the past, when natural gas prices in the
United States were lower than they are currently, the Company at times elected
to curtail certain quantities of its production. For example, in the fourth
quarter of 1994, the Company curtailed a small portion of its daily natural gas
production. As of September 1, 1996, the Company was not curtailing any of its
natural gas production as a result of low natural gas prices. Should natural gas
prices fall again in the future, the Company may again elect to curtail certain
quantities of its natural gas production. Any significant decline in oil or gas
prices could have a material adverse effect on the Company's operations and
financial condition and could, under certain circumstances, result in a
reduction in funds available under the Company's bank revolving credit facility
(the "Credit Agreement").
Because it is impossible to predict future oil and gas price movements
with any certainty, the Company from time to time enters into contracts on a
portion of its production to hedge against the volatility in oil and gas prices.
Such hedging transactions, historically, have never exceeded 50% of the
Company's total oil and gas production on an energy equivalent basis for any
given period. While intended to limit the negative effect of price declines,
such transactions could effectively limit the Company's participation in price
increases for the covered period, which increases could be significant. As of
September 1, 1996, the Company was not a party to any natural gas futures
contracts or crude oil swap agreements.
ESTIMATES OF RESERVES AND FUTURE NET REVENUES
There are numerous uncertainties in estimating the quantity of proved
reserves and in projecting the future rates of production and timing of
development expenditures. Oil and gas reserve engineering must be recognized as
a subjective process of estimating underground accumulations of oil and gas that
cannot be measured in an exact way, and estimates of other engineers might
differ materially from those of Ryder Scott Petroleum Engineers ("Ryder Scott"),
the Company's reserve engineers. The accuracy of any reserve estimate is a
function of the quality of available data and of engineering and geological
interpretation and judgment. Results of drilling, testing and production
subsequent to the date of the estimate may justify revision of such estimate.
Accordingly, reserve estimates are often different from the quantities of oil
and gas that are ultimately recovered. In addition, estimates of the Company's
future net revenues from proved reserves and the present value thereof are based
on certain assumptions regarding future oil and gas prices, production levels
and operating and development costs that may not prove to be correct. Any
significant variance in these assumptions could materially affect the estimates
of reserves and future net revenues therefrom set forth in the Company's annual
reports.
OPERATING AND UNINSURED RISKS
The Company must continually acquire or explore for and develop new oil
and natural gas reserves to replace those produced and sold. Without successful
drilling, acquisition or exploration operations, the Company's hydrocarbon
reserves and revenues would decline. Although the Company has historically
maintained its reserves base through successful exploration and production and a
number of acquisitions, there can be no assurance that future efforts will be
similarly successful. The Company's operations are also subject to risks
inherent in the exploration for and production of oil and natural gas, such as
blowouts, cratering, explosions, uncontrollable flows of oil, natural gas or
well fluids, fires, pollution and other environmental risks. Offshore oil and
gas operations are subject to the additional hazards of marine operations, such
as capsizing, collision and adverse weather and sea conditions. These hazards
could result in substantial losses to the Company due to injury or loss of life,
severe damage to and destruction of property and equipment, pollution and other
environmental damage and suspension of operations. The Company carries insurance
which it believes is in accordance with customary industry practices, but is not
fully insured against all risks incident to its business.
7
Drilling activities are subject to numerous risks, including the risk
that no commercially productive hydrocarbon reserves will be encountered. The
cost of drilling, completing and operating wells is often uncertain. The
Company's drilling operations may be curtailed, delayed or canceled as a result
of numerous factors, including weather conditions, compliance with governmental
requirements and shortages or delays in the delivery of equipment. The
availability of a ready market for the Company's natural gas production depends
on a number of factors, including the demand for and supply of natural gas, the
proximity of natural gas reserves to pipelines, the available capacity of such
pipelines and government regulations. The marketing of offshore oil and gas
production is subject to the availability of pipelines and other transportation,
processing and refining facilities, as well as the existence of adequate
markets. As a result, even if hydrocarbons are discovered in commercial
quantities, a substantial period of time may elapse before commercial production
commences. If pipeline facilities in an area are insufficient, the Company may
have to await the construction or expansion of pipeline capacity before
production from that area can be marketed. The Company's domestic offshore
properties are generally located in areas where a pipeline infrastructure is
well developed and there is adequate availability in such pipelines to handle
the Company's current and projected future production. For a discussion of
additional risks regarding the Company's operations in Thailand, see "Risks of
Foreign Operations" and "Additional Risks Related to the Company's Operations in
the Kingdom of Thailand".
DEPENDENCE ON OTHER OPERATORS
Many of the Company's oil and gas properties are not operated by the
Company, including a majority of its offshore Gulf of Mexico properties. As a
result, the Company has limited control over the manner in which operations are
conducted on such non-operated properties, including the safety and
environmental standards used in connection therewith. Pursuant to the operating
agreements governing operations on the properties in which the Company has an
interest, the Company maintains significant influence or control over the nature
and timing of exploration and development activities on the majority of its
properties. Such agreements do not, however, allow the Company such influence or
control with respect to a portion of its properties; in such cases, the
operators of such properties generally have control with respect to the nature
and timing of exploration or development activities. In such instances, the
operators of such properties could refuse to initiate exploration or development
projects, in which case the Company would be required to propose such activities
and may be required to proceed with such activities without receiving any
funding from the operator, or the operators may initiate exploration or
development projects on a slower schedule than that preferred by the Company.
Any of these events could have a significant effect on the Company's anticipated
exploration and development activities.
SUBORDINATION OF NOTES; LEVERAGE AND DEBT SERVICE
The Notes are subordinated obligations of the Company and, as such, are
subordinated to all of the Company's existing and future Senior Indebtedness (as
defined in the Indenture relating to the Notes), including indebtedness under
the Credit Agreement. The Company expects to incur Senior Indebtedness from time
to time in the future under the Credit Agreement or otherwise, and the Indenture
relating to the Notes does not restrict the incurrence of any other indebtedness
or liabilities by the Company or its subsidiaries. Upon any distribution of
assets, liquidation, dissolution, reorganization or any similar proceeding by or
relating to the Company, the holders of Senior Indebtedness of the Company are
entitled to receive payment in full before the holders of the Notes are entitled
to receive any payment. The terms and conditions of the subordination provisions
pertinent to the Notes are described in more detail in "Description of the Notes
- -- Subordination".
Further, the Notes are effectively subordinated to claims of holders of
any preferred stock and claims of creditors (other than the Company) of the
Company's subsidiaries, including trade creditors, secured creditors, taxing
authorities, creditors holding guarantees, and tort claimants. In the event of a
liquidation, reorganization, or similar proceeding relating to a subsidiary,
these persons generally will have priority as to the assets of such subsidiary
over the claims and equity interest of the Company and, thereby indirectly,
holders of indebtedness of the Company, including the Notes. Among other
obligations, Thaipo has guaranteed its pro rata portion of commitments under a
ten year bareboat charter of a Floating Production, Storage and Offloading
facility to be used for development of the Tantawan production area. The portion
of the commitments under the bareboat charter guaranteed by Thaipo is currently
estimated at $9,303,000 per year. The documents governing such obligations state
that the Company has no liability for such obligations. In addition, other
liabilities may be incurred by the Company's subsidiaries in the future.
As of June 30, 1996, the Company's long-term debt (including the current
portion) was $202,550,000 and shareholders' equity was $87,882,000, and thus the
Company may continue to be considered highly leveraged. The Company believes
that its cash flow from operations, the funds available under the Credit
Agreement and its other sources of liquidity, will be adequate to meet its
anticipated requirements for working capital, capital expenditures, interest
payments and scheduled principal payments. However, the Company's ability to
meet its debt service obligations will be dependent upon its future performance,
which, in turn, will be subject to general economic conditions and to financial,
business and other
8
factors affecting the operations of the Company, many of which are beyond its
control. In the event of a Repurchase Event, the Company may be required,
subject to certain conditions, to purchase some or all of the outstanding Notes
at a price equal to 100% of the principal amount thereof, plus accrued interest.
The Company's ability to pay cash to the Holders of Notes upon a repurchase
might be limited by certain financial covenants contained in the Company's
Senior Indebtedness. In addition, there can be no assurance that the Company
would have sufficient financial resources at the time of any such required
purchase to enable it to repurchase such Notes. See "Description of the Notes --
Certain Rights to Require Repurchase of Convertible Notes".
GOVERNMENT REGULATION AND ENVIRONMENTAL RISKS
The Company's business is subject to certain laws and regulations
relating to taxation, exploration for and development and production of oil and
gas, and environmental and safety matters in both the United States and the
foreign countries in which the Company or any of its subsidiaries operates or
owns property. Various laws and regulations often require permits for drilling
wells and also cover spacing of wells, the prevention of waste of oil and gas
including maintenance of certain gas/oil ratios, rates of production and other
matters. The effect of these statutes and regulations, as well as other
regulations that could be promulgated by the jurisdictions in which the Company
has production, could be to limit the number of wells that could be drilled on
the Company's properties and to limit the allowable production from the
successful wells completed on the Company's properties, thereby limiting the
Company's revenues.
The discharge of oil, natural gas or other pollutants into the air, soil
or water may give rise to liabilities to the government and third parties and
may require the Company to incur costs to remedy the discharge. Oil or natural
gas may be discharged in many ways, including from a well or drilling equipment
at a drill site, leakage from storage tanks, pipelines or other gathering and
transportation facilities and discharges resulting from damage to oil or natural
gas wells resulting from, accidents during normal operations, as well as
blowouts, cratering and explosions. Discharged oil and gas may migrate through
soil to water supplies or adjoining properties, giving rise to additional
liabilities. A variety of laws and regulations govern the environmental aspects
of oil and gas production, transportation and processing and may, in addition to
other laws, impose liability in the event of discharges (whether or not
accidental), for failure to notify the proper authorities of a discharge and
other failures to comply with those laws. Environmental laws may also affect the
costs of the Company's acquisitions of oil and gas properties. The Company does
not believe that its environmental risks are materially different from those of
comparable companies in the oil and gas industry. Nevertheless, no assurance can
be given that environmental laws will not, in the future, result in a
curtailment of production or a material increase in the costs of production,
development or exploration or otherwise adversely affect the Company's
operations and financial condition. Pollution and similar environmental risks
generally are not fully insurable. See "-- Operating and Uninsured Risks".
RISKS OF FOREIGN OPERATIONS
Ownership of property interests and production operations in Thailand
and in any other areas outside the United States in which the Company may choose
to do business, are subject to the various risks inherent in foreign operations.
These risks may include, among other things, currency restrictions and exchange
rate fluctuations, loss of revenue, property and equipment as a result of
hazards such as expropriation, nationalization, war, insurrection and other
political risks, risks of increases in taxes and governmental royalties,
renegotiation of contracts with governmental entities, changes in laws and
policies governing operations of foreign-based companies and other uncertainties
arising out of foreign government sovereignty over the Company's international
operations. The Company's international operations may also be adversely
affected by laws and policies of the United States affecting foreign trade,
taxation and investment. In addition, in the event of a dispute arising from
foreign operations, the Company may be subject to the exclusive jurisdiction of
foreign courts or may not be successful in subjecting foreign persons to the
jurisdiction of the courts of the United States.
ADDITIONAL RISKS RELATED TO THE COMPANY'S OPERATIONS IN THE KINGDOM OF THAILAND
The Company's operations in the Kingdom of Thailand are subject to
additional risks. Among other things, the Company and its joint venture partners
will be required, on August 1, 1997, unless extended, to relinquish the
remaining exploration acreage in the Concession and will retain only those areas
which have been designated as production areas or for which designation as a
production area has been applied for or granted by the Thai government. In
addition, the marketing and sale of hydrocarbons produced from the Concession is
subject to numerous risks and uncertainties. For example, all oil and natural
gas produced from the Concession are expected to be sold to the Petroleum
Authority of Thailand ("PTT"), which maintains a monopoly over oil and gas
transmission and distribution in Thailand. The Concession is traversed by a
major (34 inches in diameter) natural gas pipeline that is owned and operated by
PTT which comes within approximately 25 miles of the Tantawan structure. This
pipeline is currently running at or near capacity. However, construction of a
second, parallel,
9
36 inch in diameter pipeline that is also owned, and will be operated, by PTT is
expected to be completed during 1996. There can be no assurances, however, that
even if the Company is successful in its exploration efforts, it will be able to
successfully, economically and profitably transport, process, refine and market
the oil and gas it produces. PTT has contractually committed to construct a 24
inch lateral pipeline from the 36 inch pipeline to the Tantawan production area
and to take the gas produced therefrom pursuant to a Gas Sales Agreement (the
"GSA"). In the event that the required reserves or production rates of natural
gas at a specified quality level under the GSA are not delivered, then the
Company and its joint venture partners in the Tantawan production area will be
obligated to contribute to PTT's capital costs incurred in the construction of
the lateral pipeline. Also, under the GSA, the Tantawan joint venturers'
liability for failure to deliver the minimum contracted daily rate is limited to
PTT's right to take from subsequent deliveries an amount equal to the quantity
of natural gas not delivered at 75% of the contracted price. Cash flows
resulting from operations in Thailand are subject to Thai governmental
royalties, other governmental charges and income taxes. Since all gas sales
under the GSA are expected to be recognized in Baht, the Thai currency,
fluctuations in the exchange rate between Baht and dollars could have an adverse
effect on the anticipated profits of the Company's operations in Thailand. See
"Risk of Foreign Operations".
ABSENCE OF PUBLIC TRADING MARKET; TRANSFER RESTRICTIONS
There is no existing public trading market for the Notes (which
currently are registered to trade on the PORTAL System in the United States and
the Euroclear System outside the United States). There can be no assurance as to
the liquidity of any markets on which the Notes trade or any public market that
may develop, the ability of the holders of Notes to sell such securities, the
price at which the Holders of Notes would be able to sell such securities or
whether the existing trading markets for the Notes, or any public market that
may develop, if it develops, will continue. If such a public market for the
Notes were to exist, the Notes could trade at prices higher or lower than their
principal amount, depending on many factors, including prevailing interest
rates, the market for similar securities and the operating results of the
Company.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges for each of the five fiscal years ended December 31, 1995 and the six
months ended June 30, 1996. For purposes of this table each Ratio of Earnings to
Fixed Charges consists of pre-tax earnings plus total interest charges,
including amortization of debt issue expenses, divided by total interest
charges, including amortization of debt issue expenses. These ratios should be
read in conjunction with the other financial information contained in the
documents incorporated herein by reference as described under "Documents
Incorporated by Reference."
Six Months Year Ended December 31,
Ended June 30, ---------------------------------
1996 1995 1994 1993 1992 1991
Ratio of Earnings to ---- ---- ---- ---- ----
Fixed Charges .... 4.4 2.1 5.1 4.5 2.5 1.6
THE COMPANY
Pogo Producing Company is an independent oil and gas exploration and
production company. Domestically, the Company has an extensive Gulf of Mexico
reserve and acreage position and is also active in the Permian Basin of New
Mexico and Texas and the onshore Gulf Coast areas of Texas and Louisiana.
Internationally, the Company is the operator on a portion of a 1.3 million acre
concession license in the Gulf of Thailand.
The Company is a Delaware corporation. Its executive offices are located
at 5 Greenway Plaza, Suite 2700, Houston, Texas 77046-0504 and its telephone
number is (713)297-5000.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale by the Selling
Holders of any of the Securities.
10
THE SELLING HOLDERS
The Notes were initially issued and sold pursuant to a Purchase
Agreement dated as of June 11, 1996 between Goldman, Sachs & Co. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (collectively, the "Initial
Purchasers") and the Company. The Selling Holders acquired the Notes from the
Initial Purchasers or holders who acquired the Notes from the Initial Purchasers
or other prior holders thereof either (a) from the Initial Purchasers in
transactions complying with Rule 144A, Regulation D or Regulation S under the
Securities Act or (b) in other permitted resale transactions exempt from
registration under the Securities Act. The Company agreed to indemnify and hold
the Initial Purchasers harmless against certain liabilities under the Securities
Act that would or could arise in connection with the sale of the Notes by the
Initial Purchasers.
Except as otherwise indicated, the table below sets forth certain
information with respect to the Selling Holders and the Securities as of
September 12, 1996. The term Selling Holders includes the beneficial owners of
the Securities listed below and their respective transferees, pledgees, donees
or other successors. Other than as a result of the ownership of Securities
indicated below, none of the Selling Holders has had any material relationship
with the Company or any of its affiliates within the past three years.
<TABLE>
<CAPTION>
AGGREGATE PRINCIPAL NUMBER OF SHARES OF
AMOUNT OF NOTES OWNED COMMON STOCK OWNED BY
BY THE SELLING HOLDER AND THE SELLING HOLDER AND
NAME OF SELLING HOLDER WHICH ARE OFFERED HEREBY WHICH ARE OFFERED HEREBY(1)
---------------------- ------------------------ -------------------------
<S> <C> <C>
Bankers Trust NY Corporation $ 100,000 2,370
Christian Science Trustees for
Gifts and Endowments 135,000 3,200
Continental Assurance Company 750,000 17,778
Continental Assurance Company
Separate Account (E) 2,300,000 54,521
Cova Bond Debenture Fund 50,000 1,185
Declaration of Trust for the
Defined Benefit Plan of ICI
American Holdings Inc. 510,000 12,089
Declaration of Trust for the
Defined Benefit Plans of
ZENENCA Holdings Inc. 355,000 8,415
Delaware State Employees'
Retirement Fund 1,680,000 39,824
Delta Air Lines Master Trust 2,865,000 67,915
Farmers Automobile Insurance
Association 100,000 2,370
</TABLE>
- --------
(1) Unless otherwise noted, the nature of beneficial ownership is sole
voting and/or investment power. Common Stock ownership assumes as the conversion
price, the initial conversion price of $42.185 per share of Common Stock
(equivalent to a conversion rate of approximately 23.7051 shares per $1000
principal amount of Notes), and a cash payment in lieu of any fractional share
interest. No Selling Holder reported owning any shares of Common Stock other
than those into which the Notes were convertible.
11
<TABLE>
<CAPTION>
<S> <C> <C>
First Church of Christ, Scientist -
Endowment 165,000 3,911
Forest Fulcrum Fund Ltd. 1,000,000 23,705
Forest Fulcrum Fund LP 1,000,000 23,705
General Motors Employees
Domestic Group Trust 4,760,000 112,836
Hillside Capital Incorporated
Corporate Account 150,000 3,555
Massachusetts Financial Company
Total Return Fund 2,000,000 47,410
NB Convertible Arbitrage Partners, LP 200,000 4,741
Northstar Income & Growth Fund 3,350,000 79,412
Northstar Income & Growth - Variable Annuity 150,000 3,555
OCM Convertible Trust 4,385,000 103,946
State Employees' Retirement
Fund of the State of Delaware 1,000,000 23,705
State of Connecticut Combined
Investment Funds 3,000,000 71,115
Teepak, Inc. Master Retirement
Trust 45,000 1,066
Thermo Electron Balanced
Investment Fund 500,000 11,852
------------ ------------
SUBTOTAL . . . . . . . . . . . . . . 30,550,000 724,181
------------ ------------
Unnamed holders of Notes or any future
transferees, pledgees, donees or
successors of or from any such
unnamed holder(2) 84,450,000 2,001,895 (3)
TOTAL . . . . . . . . . . . . . . . $115,000,000 2,726,076
============ ===========
</TABLE>
The preceding table has been prepared based upon information furnished
to the Company by the Depository Trust Company ("DTC") and by or on behalf of
the Selling Holders. Additional information concerning ownership of the
Securities offered hereby rests with certain holders of the Securities who are
not named in the preceding table, with whom
- --------
(2) No such holder may offer Securities pursuant to the Registration
Statement of this Prospectus forms a part until such holder is included as a
Selling Holder in a supplement to this Prospectus in accordance with the
Registration Rights Agreement.
(3) Assumes that the unnamed holders of Notes or any future transferees,
pledgees, donees or successors of or from any such unnamed holder does or do not
beneficially own any Common Stock other than Common Stock issuable upon
conversion of the Notes at the initial conversion rate set forth above.
12
the Company believes it has no affiliation and from whom the Company received no
response to its request for such information.
In view of the fact that Selling Holders may offer all or a portion of
the Notes or shares of Common Stock held by them pursuant to the offering
contemplated by this Prospectus, and because this offering is not being
underwritten on a firm commitment basis, no estimate can be given as to the
amount of Notes or the number of shares of Common Stock that will be held by the
Selling Holders after completion of the offering made hereby.
Information concerning the Selling Holders may change from time to time
and any such changed information will, if and when necessary, be set forth in
supplements to this Prospectus. In addition, the per share conversion price, and
therefor the number of shares issuable upon conversion of the Notes, is subject
to adjustment under certain circumstances. Accordingly, the aggregate principal
amount of Notes and the number of shares of Common Stock issuable upon
conversion thereof and offered hereby are subject to adjustment in certain
circumstances and may increase or decrease. See "Description of the Notes --
Conversion Rights". As of the date of this Prospectus, the aggregate principal
amount of Notes outstanding is $115,000,000.
DESCRIPTION OF THE NOTES
The following description sets forth certain terms and provisions of the
Notes. The Notes were issued under an Indenture entered into by the Company and
the Trustee and dated June 15, 1996, prior to the issuance of any such Notes.
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). The Notes are subject to all such terms,
and prospective purchasers of the Notes are referred to the Indenture and the
Trust Indenture Act for a statement of those terms. The statements under this
caption relating to the Notes are summaries and do not purport to be complete.
Such summaries use certain terms that are defined in the Indenture and are
qualified in their entirety by express reference to the Indenture. Copies of the
Indenture in substantially the form in which it was executed, are available from
the Company upon request. The article and section references below are to
articles and sections of the Indenture.
GENERAL
The Notes are unsecured, subordinated obligations of the Company, are
limited in aggregate principal amount to $115,000,000, and will mature on June
15, 2006, unless previously converted or redeemed. (Section 301) The Notes bear
interest at the rate of 5 1/2% per annum, payable semiannually in arrears on
June 15 and December 15 of each year (an "Interest Payment Date"), commencing on
December 15, 1996. (Sections 301 and 307).
The Notes are convertible into Common Stock initially at the conversion
price of $42.185 per share (equivalent to a conversion rate of 23.7051 share per
$1,000 principal amount of Notes), subject to adjustment upon the occurrence of
certain events described under "--Conversion Rights", at any time on or after
September 16, 1996, and prior to the close of business on the maturity date,
unless previously redeemed or repurchased. (Section 1301).
The Notes are redeemable at the option of the Company, in whole or in
part, on or after June 15, 1999, at the redemption prices set forth below under
"-- Redemption at Option of Company", plus accrued interest to the redemption
date. (Section 203).
CONVERSION RIGHTS
The Holder of any Note will have the right, at the Holder's option, to
convert the principal amount thereof (or any portion thereof that is an integral
multiple of $1,000) into shares of Common Stock at any time on or after
September 16, 1996, and prior to the close of business on the maturity date
initially at the conversion price of $42.185 per share of Common Stock (subject
to adjustments as described below), except that if a Note is called for
redemption, the right to convert such called Note will terminate at the close of
business on the Business Day (as such term is defined in the Indenture)
immediately preceding the redemption date. No payment of interest and no
adjustment in respect of dividends will be made upon the conversion of any Note,
and the Holder will lose any right to payment of interest on the Notes
surrendered for conversion; provided, however, that upon a call for redemption
as described herein by the Company, accrued and unpaid interest to the
redemption date shall be payable with respect to Notes that are converted after
a notice of redemption has been mailed and prior to the redemption date. Notes
surrendered for conversion during the period from
13
the regular record date for an interest payment to the corresponding interest
payment date (except Notes called for redemption as described herein) must be
accompanied by payment of an amount equal to the interest thereon which the
Holder is to receive on such interest payment date. No fractional shares will be
issued upon conversion but, in lieu thereof, an appropriate amount will be paid
in cash by the Company based on the reported last sale price for the shares of
Common Stock on the day of conversion. (Sections 1301, 1303 and 1305)
The conversion price is subject to adjustment in certain events,
including: the issuance of stock as a dividend on the Common Stock; subdivisions
or combinations of the Common Stock; the issuance to all holders of Common Stock
of certain rights or warrants (expiring within 45 days after the record date for
determining stockholders entitled to receive them) to subscribe for or purchase
Common Stock at a price less than the current market price; or the distribution
to substantially all Holders of Common Stock of evidences of indebtedness of the
Company, cash (excluding quarterly cash dividends paid or to be paid on a
regular basis), other assets or rights or warrants to subscribe for or purchase
any securities (other than those referred to herein). No adjustment of the
conversion price is required to be made until cumulative adjustments amount to
1% or more of the then current conversion price; however, any adjustment not
made will be carried forward. (Section 1304)
The Company from time to time may decrease the conversion price by any
amount for any period of at least 20 days, in which case the Company shall give
at least 15 days notice to the Holders of the Notes of such decrease. The
Company may also, at its option, make such decreases in the conversion rate as
the Board of Directors of the Company deems advisable to avoid or diminish any
income tax to holders of Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes. (Section 1304)
In case of any reclassification of the Common Stock, any consolidation
of the Company with, or merger of the Company into, any other person, any merger
of any person into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock), any sale or other disposition of the assets of the Company
substantially as an entirety or any compulsory share exchange whereby the Common
Stock is converted into other securities, cash or other property, then provision
shall be made such that the Holder of Notes then outstanding shall have the
right thereafter, during the period such Notes shall be convertible, to convert
such Notes only into the kind and amount of securities, cash and other property
receivable upon such reclassification, consolidation, merger, sale, disposition
or share exchange by a holder of the number of shares of Common Stock into which
such Notes might have been converted immediately prior to such reclassification,
consolidation, merger, sale, disposition or share exchange. (Section 1306)
SUBORDINATION
Payment of the principal of and premium, if any, and interest on the
Notes (including any Liquidated Damages (as defined)) is subordinated in right
of payment, as set forth in the Indenture, to the prior payment in full of all
Senior Indebtedness of the Company when due in accordance with the terms
thereof. Senior Indebtedness is defined in the Indenture as the principal of,
premium, if any, and unpaid interest (including, without limitation, any
interest accruing subsequent to the commencement of a case or other proceeding
under any bankruptcy or other similar law with respect to the Company) on, and
other obligations in respect of the following, whether outstanding at the date
of the Indenture or thereafter incurred or created: (a) indebtedness of the
Company for money borrowed (including purchase money obligations) evidenced by
notes or other written obligations, (b) indebtedness of the Company evidenced by
notes, debentures, bonds or other securities issued under the provisions of an
indenture or similar instrument, (c) indebtedness secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held by
the Company subject to such mortgage, pledge or encumbrance, whether or not
indebtedness secured thereby shall have been assumed by the Company, (d)
obligations of the Company as lessee under capitalized leases and under leases
of property made as part of any sale and leaseback transactions, (e) obligations
of the Company in respect of letters of credit issued for its account and
"swaps" of interest rates, commodity prices or foreign currencies (and other
interest rate, commodity price or foreign currency hedging agreements) to which
the Company is a party, (f) indebtedness of others of any of the kinds described
in the preceding clauses (a) through (e) assumed or guaranteed by the Company
and (g) renewals, extensions and refundings of, and indebtedness and obligations
of a successor person issued in exchange for or in replacement of, indebtedness
or obligations of the kinds described in the preceding clauses (a) through (f);
provided, however, that the following will not constitute Senior Indebtedness:
(i) any indebtedness or obligation which by its terms refers explicitly to the
Notes and states that such indebtedness or obligation shall not be senior in
right of payment thereto, (ii) any indebtedness or obligation of the Company in
respect of the Notes and (iii) any indebtedness or obligation of the Company to
a subsidiary. (Sections 101 and 1401) Notwithstanding the foregoing, all
indebtedness and obligations of the Company
14
in respect of the 5 1/2% Convertible Subordinated Notes, due 2004 (the "5 1/2%
Notes") shall rank pari passu with the Notes and shall not constitute Senior
Indebtedness under the Indenture.
Further, the Notes are effectively subordinated to claims of creditors
(other than the Company) of the Company's subsidiaries, including trade
creditors, secured creditors, taxing authorities, creditors holding guarantees,
and tort claimants. See "Risk Factors -- Subordination of Notes; Leverage and
Debt Service". There are no restrictions on the incurrence of indebtedness,
including Senior Indebtedness, or other liabilities by the Company or its
subsidiaries in the Indenture.
By reason of such subordination, in the event of dissolution,
insolvency, bankruptcy or other similar proceeding, Holders of the Notes may
recover less, ratably, than holders of Senior Indebtedness and other general
creditors of the Company, and, upon any distribution of assets, the Holders of
Notes will be required to pay over their share of such distribution to the
holders of Senior Indebtedness until such Senior Indebtedness is paid in full.
In addition, such subordination may affect the Company's obligation to make
principal and interest payments with respect to the Notes if any Notes are
declared due and payable prior to their stated maturity, or in the event of any
default in the payment of principal of or premium, if any, or interest on any
Senior Indebtedness, or in the payment of any commitment or other fees in
respect thereof, or in the event of any default with respect to Senior
Indebtedness that would permit acceleration of the maturity thereof, or in the
event a judicial proceeding is pending with respect to any such Senior
Indebtedness default. (Sections 1402, 1403 and 1404)
REDEMPTION AT OPTION OF COMPANY
The Notes are not redeemable at the option of the Company prior to June
15, 1999. On and after June 15, 1999, the Notes are redeemable at the option of
the Company, in whole or in part, at any time during the 12-month periods
beginning June 15 of the years indicated at the following Redemption Prices
(expressed as percentages of the principal amount):
YEAR REDEMPTION PRICE
1999 103.850
2000 103.300
2001 102.750
2002 102.200
2003 101.650
2004 101.100
2005 100.550
together in each case with accrued and unpaid interest to the date fixed for
redemption (subject to the right of Holders of record on the regular record date
to receive interest due on an interest payment date). (Sections 203, 1101 and
1108)
Notes in any denomination equal to or larger than $1,000 may be redeemed
in whole or in part in multiples of $1,000. On and after the redemption date,
interest will cease to accrue on Notes or portions thereof called for
redemption. (Sections 1104 and 1107)
Accrued and unpaid interest to the redemption date shall be payable with
respect to Notes that are converted after a notice of redemption has been mailed
and prior to the redemption date. (Section 1303)
Notice of redemption will be mailed at least 30 but not more than 60
days prior to the redemption date to each Holder of Notes to be redeemed at the
address appearing in the security register maintained by the Company. If less
than all the outstanding Notes are to be redeemed, the Trustee will select the
Notes (or a portion thereof equal to $1,000 or any integral multiple thereof) to
be redeemed by such method as the Trustee shall deem fair and appropriate.
(Sections 1104 and 1105)
PAYMENT AND CONVERSION
The principal of Notes will be payable in dollars, against surrender
thereof to the Company at the designated office or agency of the Company in New
York, New York, by dollar check drawn on, or by transfer to a dollar account
(such transfer to be made only to Holders of an aggregate principal amount of
Notes in excess of $2,000,000) maintained
15
by the Holder with, a bank in New York City. Payment of any installment of
interest on Notes will be made to the person in whose name such Notes (or any
predecessor Note) is registered at the close of business on the June 1 or the
December 1 (whether or not a Business Day) next preceding the relevant Interest
Payment Date (a "Regular Record Date"). Payments of such interest will be made
by a dollar check drawn on a bank in New York City mailed to the Holder at such
Holder's registered address or, upon application by the Holder thereof to the
Trustee not later than the applicable Regular Record Date, by transfer to a
dollar account (such transfer to be made only to Holders of an aggregate
principal amount of Notes in excess of U.S.$2,000,000) maintained by the Holder
with a bank in New York City. No transfer to a dollar account will be made
unless the Trustee has received written wire instructions not less than 15 days
prior to the relevant payment date.
Payments in respect of the principal of (and premium, if any) and
interest on any Note registered in the name of DTC or its nominee will be
payable to DTC or its nominee in its capacity as the registered Holder under the
Indenture. Under the terms of the Indenture, the Company and the Trustee will
treat the persons in whose names the Notes are registered as the owners thereof
for the purpose of receiving such payments and for any and all other purposes
whatsoever. Consequently, neither the Company, the Trustee nor any agent of the
Company or the Trustee has or will have any responsibility or liability for (i)
any aspect of DTC's records or any participant's or indirect participant's
records relating to or payments made on account of beneficial ownership
interests in the Notes held in DTC's name, or for maintaining, supervising or
reviewing any of DTC's records or any DTC participant's or indirect
participant's records relating to the beneficial ownership interests in such
Notes, or (ii) any other matter relating to the actions and practices of DTC or
any of its participants or indirect participants.
Any payment on the Notes due on any day which is not a Business Day need
not be made on such day, but may be made on the next succeeding Business Day
with the same force and effect as if made on such due date, and no interest
shall accrue on such payment for the period from and after such date. "Business
Day", when used with respect to any place of payment, place of conversion or any
other place, as the case may be, means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York, Hartford, Connecticut or Houston, Texas, are authorized or obligated by
law or executive order to close. (Sections 101 and 202).
Notes may be surrendered for conversion at the designated office or
agency of the Company in New York, New York. Notes surrendered for conversion
must be accompanied by appropriate notices and any payments in respect of
interest or taxes, as applicable, as described above under "-- Conversion
Rights".
The Company has initially appointed the Trustee as paying agent and
conversion agent. The Company may at any time terminate the appointment of any
paying agent or conversion agent and appoint additional or other paying agents
and conversion agents, provided that until the Notes have been delivered to the
Trustee for cancellation, or moneys sufficient to pay the principal of, premium,
if any, and interest on the Notes have been made available for payment and
either paid or returned to the Company as provided in the Indenture, it will
maintain an office or agency in New York, New York for surrender of Notes for
payment and conversion. Notice of any such termination or appointment and of any
change in the office through which any paying agent or conversion agent will act
will be given in accordance with "-- Notices" below.
CERTAIN RIGHTS TO REQUIRE REPURCHASE OF NOTES
In the event of any Change in Control (as hereafter defined) of the
Company which constitutes a Repurchase Event (as hereafter defined) occurring
after the initial date of issuance of the Notes, each Holder of Notes will have
the right, at the Holder's option, to require the Company to repurchase all or
any part of the Holder's Notes on a date (the "Repurchase Date") selected by the
Company that is not more than 75 days after the date the Company gives notice of
the Repurchase Event as described below at a price (the "Repurchase Price")
equal to 100% of the principal amount thereof, together with accrued and unpaid
interest to the Repurchase Date. (Section 1201)
The Company may, at its option, in lieu of paying the Repurchase Price
in cash, pay the Repurchase Price in Common Stock valued at 95% of the average
of the closing sales prices of the Common Stock for the five trading days
immediately preceding the second day prior to the Repurchase Date; provided that
payment may not be made in Common Stock unless the Company satisfies certain
conditions with respect to such payment prior to the Repurchase Date as provided
in the Indenture. (Sections 1201 and 1202)
On or before the 15th day after the occurrence of a Repurchase Event,
the Company is obligated to mail to all Holders of Notes a notice (a "Company
Notice") including the occurrence of such Repurchase Event, the Repurchase
16
Date, the date by which the repurchase right must be exercised, the Repurchase
Price, whether the Repurchase Price will be paid in cash or by delivery of
shares of Common Stock and the procedures which the Holder must follow to
exercise this right. To exercise the Repurchase Right, the Holder of Notes must
deliver, on or before the close of business on the Business Day next preceding
the Repurchase Date, written notice to the Company (or an agent designated by
the Company for such purpose) and to the Trustee of the Holder's intent to
exercise such rights, together with the Notes with respect to which the right is
being exercised. Such written notice will be irrevocable. (Section 1202)
A "Change in Control" shall occur when: (i) the Company's assets are
sold or otherwise disposed of substantially as an entirety to any person or
related group of persons in any one transaction or a series of related
transactions; (ii) there shall be consummated any consolidation or merger of the
Company (A) in which the Company is not the continuing or surviving corporation
(other than a consolidation or merger with a wholly owned subsidiary of the
Company in which all shares of Common Stock outstanding immediately prior to the
effectiveness thereof are changed into or exchanged for the same number of
shares of common stock of such subsidiary) or (B) pursuant to which the Common
Stock would be converted into cash, securities or other property, in each case,
other than a consolidation or merger of the Company in which the holders of the
Common Stock immediately prior to the consolidation or merger have, directly or
indirectly, at least a majority of the common stock of the continuing or
surviving corporation immediately after such consolidation or merger; or (iii)
any person, or any persons acting together which would constitute a "group" for
purposes of Section 13(d) of the Exchange Act (other than the Company, any
Subsidiary, any employee stock purchase plan, stock option plan or other stock
incentive plan or program, retirement plan or automatic dividend reinvestment
plan or any substantially similar plan of the Company or any Subsidiary or any
person holding securities of the Company for or pursuant to the terms of any
such employee benefit plan), together with any affiliates thereof, shall acquire
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of at
least 50% of the total voting power of all classes of capital stock of the
Company entitled to vote generally in the election of directors of the Company.
(Section 1206)
A Change in Control as described above shall constitute a Repurchase
Event unless (i) the Current Market Price of the Common Stock on the date the
Change in Control shall have occurred is at least equal to 105% of the
conversion price of the Notes in effect immediately preceding the time of such
Change in Control, or (ii) all of the consideration (excluding cash payments for
fractional shares) in the transaction giving rise to such Change in Control to
the holders of Common Stock consists of shares of common stock that are, or
immediately upon issuance will be, listed on a national securities exchange or
quoted on the NASDAQ National Market, and as a result of such transaction the
Notes become convertible solely into such common stock, or (iii) the
consideration in the transaction giving rise to such Change in Control to the
holders of Common Stock consists of cash, securities that are, or immediately
upon issuance will be, listed on a national securities exchange or quoted on the
NASDAQ National Market, or a combination of cash and such securities and the
aggregate fair market value of such consideration (which, in the case of such
securities, shall be equal to the average of the daily closing prices of such
securities during the ten consecutive trading days commencing with the sixth
trading day following consummation of such transaction) is at least 105% of the
conversion price of the Notes in effect on the date immediately preceding the
closing date of such transaction. (Section 1206)
The right to require the Company to repurchase Notes as a result of the
occurrence of a Repurchase Event could create an event of default under Senior
Indebtedness of the Company, as a result of which any repurchase could, absent a
waiver, be blocked by the subordination provisions of the Notes. See "--
Subordination." Failure by the Company to repurchase the Notes when required
would result in an Event of Default (as herein defined) with respect to the
Notes whether or not such repurchase were permitted by the subordination
provisions. See "-- Defaults and Remedies." The Company's ability to pay cash to
the Holders of Notes upon a repurchase might be limited by certain financial
covenants contained in the Company's Senior Indebtedness. In addition, there can
be no assurance that the Company would have sufficient financial resources at
the time of any such required purchase to enable it to purchase the Notes.
(Sections 501 and 1404)
In the event a Repurchase Event occurs and the Holders exercise their
rights to require the Company to repurchase Notes, the Company intends to comply
with applicable tender offer rules under the Exchange Act, including Rules 13e-4
and 14e-1, as then in effect, with respect to any such purchase.
The foregoing provisions would not necessarily afford Holders of Notes
protection in the event of highly leveraged or other transactions involving the
Company that may adversely affect Holders. In addition, the foregoing provisions
may discourage open market purchases of the Common Stock or a non-negotiated
tender or exchange offer for such stock and, accordingly, may limit a
shareholder's ability to realize a premium over the market price of the Common
Stock in connection with any such transaction.
17
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of Notes, may
consolidate or merge with or into any person, or convey, transfer, lease or
otherwise dispose of its assets substantially as an entirety to any person, and
any person may consolidate or merge with, or into, or transfer or lease its
assets substantially as an entirety to, the Company, provided that (i) the
person (if other than the Company) formed by such consolidation or into which
the Company is merged or which acquires or leases the assets of the Company
substantially as an entirety is organized and existing under the laws of the
United States, any state thereof or the District of Columbia, and assumes the
Company's obligations on the Notes and under the Indenture, (ii) after giving
effect to such transaction, no Event of Default and no event that, after notice
or lapse of time or both, would become an Event of Default, shall have happened
and be continuing and (iii) certain procedural conditions are met. (Article
Eight)
DEFAULTS AND REMEDIES
The Indenture defines the following as Events of Default: default for 30
days in payment of interest on the Notes (including any Liquidated Damages);
default in payment of principal of or premium, if any, on the Notes when due,
whether or not such payment is prohibited by the subordination provisions of the
Indenture; default for more than 10 days after a Repurchase Date in payment of
the Repurchase Price; failure by the Company for 60 days after written notice to
it to comply with any of its other covenants in the Indenture; default by the
Company under any instrument or other evidence of indebtedness of the Company
for money borrowed, or under any guarantee of payment by the Company for money
borrowed, in an amount in excess of 5% of Consolidated Net Tangible Assets (as
defined below), unless such default has been cured or waived; certain events of
bankruptcy, insolvency or reorganization relative to the Company; and failure by
the Company to give a Company Notice when required after the occurrence of a
Repurchase Event.
(Section 501)
"Consolidated Net Tangible Assets" means the total amount of assets of
the Company and its Subsidiaries (less depreciation, depletion, valuation and
other reserves) after deducting (i) all current liabilities, (ii) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles and (iii) minority interests in the equity of
Subsidiaries. (Section 101)
If an Event of Default occurs and is continuing, the Trustee or Holders
of at least 25% in aggregate principal amount of the Notes outstanding may
declare the principal of the Notes and accrued interest thereon to be due and
payable immediately, but under certain conditions, such acceleration may be
rescinded by the Holders of a majority in principal amount of the Notes then
outstanding. (Sections 502 and 513)
Holders of Notes may not enforce the Indenture except as provided in
such Indenture and except that, subject to any applicable subordination
provisions, nothing shall prevent the Holders of Notes from enforcing payment of
the principal of or premium, if any, or interest on, their Notes. (Section 508)
The Trustee may refuse to enforce the Indenture unless it receives reasonable
security or indemnity.
The Holders of a majority in aggregate principal amount of all
outstanding Notes will have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy or power available to the
Trustee under the Indenture, provided that such direction does not conflict with
any rule of law or with the Indenture and would not involve the Trustee in
personal liability or be unduly prejudicial to Holders of Notes not joining in
such action (as determined by the Trustee in good faith). (Sections 507, 508 and
512)
In case a default or an Event of Default under the Indenture shall occur
and be continuing and if it is known to the Trustee, the Trustee shall mail to
each Holder of Notes notice of the default or Event of Default within 90 days
after it occurs. Except in the case of a default or an Event of Default in
payment of the principal of, premium, if any, or interest on any Note, the
Trustee may withhold the notice if and so long as the Trustee in good faith
determines that withholding the notice is in the interest of Holders of Notes.
Subject to such provisions, when the Trustee incurs expenses or renders services
after an Event of Default, the expenses and the compensation for the services
are intended to constitute expenses of administration under any bankruptcy law.
(Sections 602, 603 and 607)
The Company will annually furnish the Trustee with an officers'
certificate with respect to compliance with the terms of the Indenture. (Section
1005)
MODIFICATION
18
Modification and amendment of the Indenture may be effected by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding under the Indenture,
provided that no such modification or amendment may, without the consent of each
Holder affected thereby, (i) change the fixed maturity of or place for payment
of principal, premium if any, or interest on any Note, (ii) reduce the principal
of or rate of interest thereon, or the premium, if any, payable upon the
redemption of, or change the obligation of the Company to pay any Liquidated
Damages with respect to, any Note, (iii) make any Note payable in a currency
other than dollars, (iv) impair the right to institute suit for the enforcement
of any payment on or with respect to any such Note, (v) make any change that
adversely affects the right to convert any Note, (vi) modify the subordination
provisions of the Notes in a manner adverse to the Holders of the Notes, or
(vii) reduce the amount of Notes whose Holders must consent to a modification or
amendment or waive compliance with certain provisions of the Indenture. The
Indenture also contains provisions permitting the Company and the Trustee to
effect certain minor modifications to the Indenture not adversely affecting the
rights of Holders of Notes in any material respect. (Sections 901 and 902)
TRANSFER, EXCHANGE AND WITHDRAWAL
At the option of the Holder upon request confirmed in writing, and
subject to the terms of the Indenture, any Registered Note is exchangeable at
any time into an equal aggregate principal amount of Registered Notes of
different authorized denominations provided that any applicable transfer
restrictions are satisfied. (Section 305)
Registered Notes may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) or exchange, at the office of
any transfer agent or at the office of the security registrar, without service
charge but, in the case of a transfer, upon payment of any taxes and other
governmental charges as described in the Indenture. Any registration of transfer
or exchange will be effected upon the transfer agent or the security registrar,
as the case may be, being satisfied with the documents of title and identity of
the person making the request, and subject to such reasonable regulations as the
Company may from time to time agree upon with the transfer agents and the
security registrar, all as described in the Indenture. Subject to the applicable
transfer restrictions, Registered Notes may be transferred in whole or in part
in authorized denominations. (Section 305)
The Company has initially appointed the Trustee as security registrar
and transfer agent, acting through its Corporate Trust Office in Hartford,
Connecticut. The Company reserves the right to vary or terminate the appointment
of the security registrar or of any transfer agent or to appoint additional or
other transfer agents or to approve any change in the office through which any
security registrar or any transfer agent acts. (Section 305)
TITLE
The Company, the Trustee, any Paying Agent and any Conversion Agent may
treat the registered owner (as reflected in the Security Register) of any Note
as the absolute owner thereof (whether or not such Note shall be overdue) for
the purpose of making payment and for all other purposes. (Section 308)
NOTICES
Notice to Holders of the Notes will be given by mail to the addresses of
such Holders as they appear in the Security Register. Such notices will be
deemed to have been given on the date of such mailing. (Section 106)
Notice of a redemption of Notes will be given at least once not less
than 30 nor more than 60 days prior to the redemption date (which notice shall
be irrevocable) and will specify the redemption date. (Sections 1105 and 1107)
REPLACEMENT OF NOTES
Notes that become mutilated, destroyed, stolen or lost will be replaced
by the Company at the expense of the Holder upon delivery to the Trustee of the
mutilated Notes or evidence of the loss, theft or destruction thereof
satisfactory to the Company and the Trustee. In the case of a lost, stolen or
destroyed Note, indemnity satisfactory to the Trustee and the Company may be
required at the expense of the Holder of such Note before a replacement Note
will be issued.
(Section 306)
GOVERNING LAW
The Notes and the Indenture provide that they are governed by the laws
of the State of New York. (Section 112)
19
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any such
claim as security or otherwise. The Trustee will be permitted to engage in other
transactions with the Company; provided, however, if it acquires any conflicting
interest and there exists a default with respect to the Notes, it must eliminate
such conflict or resign. (Sections 608 and 613)
Fleet National Bank is also trustee under the Company's indenture under
which the 5 1/2% Notes are outstanding.
DESCRIPTION OF CAPITAL STOCK
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
The authorized capital stock of the Company consists of 100,000,000
shares of Common Stock, par value $1.00 per share, of which 33,249,393 shares
were issued and outstanding as of September 11, 1996; and 2,000,000 shares of
preferred stock, par value $1.00 per share, of which no shares are issued. The
following summary description of the capital stock of the Company is qualified
in its entirety be reference to the Company's Restated Certificate of
Incorporation and Bylaws, copies of which are filed as exhibits to documents
filed with the Commission and which are available upon request.
COMMON STOCK
Subject to any preferential rights of any outstanding shares of
Preferred Stock, the holders of the Common Stock are entitled to such dividends
as may be declared from time to time in the discretion of the Board of Directors
out of funds legally available therefor. Holders of Common Stock are entitled to
share ratably in the net assets of the Company upon liquidation after payment or
provision for all liabilities and any preferential liquidation rights of any
Preferred Stock then outstanding. The rights of holders of Common Stock are
subject to the rights of holders of any Preferred Stock which may be issued in
the future. The holders of Common Stock have no preemptive rights to purchase
additional shares of capital stock of the Company. Shares of Common Stock are
not subject to any redemption or sinking fund provisions and are not convertible
into any other securities of the Company. All outstanding shares of Common Stock
are, and all shares of Common Stock issuable upon conversion of the Notes will
be when so issued, validly issued, fully paid and nonassessable.
Each share of Common Stock entitles the holder thereof to one vote at
all meetings of the stockholders of the Company. The affirmative vote of the
holders of at least 80% of the outstanding shares of Common Stock is required
(i) to approve a merger or similar reorganization or certain other transactions
involving the Company if the other party to such transaction already
beneficially owns 5% or more of the outstanding Common Stock and the Board of
Directors of the Company has not approved the transaction prior to the time such
other party becomes a 5% beneficial owner; (ii) to approve an amendment to the
Company's Restated Certificate of Incorporation to alter or change the provision
establishing a "classified" Board of Directors of not less than three nor more
than thirteen members, elected one-third annually; and (iii) to amend the
foregoing and certain other provisions of the Restated Certificate of
Incorporation.
The Company's Board of Directors is divided into three classes having
staggered terms, with approximately one-third of the directors being elected
annually for a term of three years. The Company's capital stock has
noncumulative voting rights, meaning that the holders of more than 50% of the
voting power of the share of voting for the election of directors can elect 100%
of the directors if they choose to do so. In such event, the holders of the
remaining less- than-50% of the voting power of the shares voting for the
election of directors will not be able to elect any directors.
PREFERRED STOCK
The Board of Directors of the Company is empowered, without approval of
the stockholders, to cause shares of Preferred Stock to be issued in one or more
series, with the number of shares of each series and the rights, preferences and
limitations of each series to be determined by it. Among the specific matters
that may be determined by the Board of Directors are the description and number
of shares to constitute each series, the annual dividend rate, whether such
dividends shall be cumulative, the time and price of redemption and the
liquidation preference applicable to the series, whether the series will be
subject to the operation of a "sinking" or "purchase" fund and, if so, the terms
and provisions
20
thereof, whether the shares of such series shall be convertible into shares of
any other class or classes and the terms and provisions of such conversion
rights, and the voting powers, if any, of the shares of such series. The Board
of Directors may change the designation, rights, preferences, descriptions and
terms of, and the number of shares in, any series of which no shares have
theretofore been issued.
The issuance of one or more series of Preferred Stock could adversely
affect the voting power of the holders of the Common Stock and could have the
effect of discouraging or making more difficult any attempt by a person or group
to obtain control of the Company.
The Board has reserved for issuance pursuant to the Stockholder Rights
Plan described below, a total of 433,334 shares of Series A Junior Participating
Preferred Stock. No shares of Series A Junior Participating Preferred Stock have
been issued by the Company at the date hereof.
LISTINGS
The Common Stock is traded on the New York Stock Exchange and the
Pacific Stock Exchange under the symbol "PPP".
TRANSFER AGENTS AND REGISTRARS
The Transfer Agents and Registrars for the Common Stock are Harris Trust
Company of New York, New York, and KeyCorp Shareholder Services, Inc., Houston,
Texas.
STOCKHOLDER RIGHTS PLAN
The Company has a Stockholder Rights Plan pursuant to which one
preferred share purchase right (a "Right") is attached to each outstanding share
of the Company's Common Stock. The Rights become exercisable under certain
circumstances, including in the event that any person or group (an "Acquiring
Person") becoming the beneficial owner of 20% or more of the Company's
outstanding Common Stock, subject to certain exceptions. Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share of
Series A Junior Participating
Preferred Stock, at an exercise price of $80, subject to adjustment under
certain circumstances. Upon the occurrence of certain events specified in the
Stockholder Rights Plan, each holder of a Right (other than the Acquiring
Person) will have the right, upon exercise of such Right, to receive that number
of shares of Common Stock of the Company (or, in certain circumstances, cash,
property or other securities) that, at the time of the transaction, would have a
market value of two times the exercise price of the Right. Rights are redeemable
by action of the Company's Board of Directors for $0.01 per Right at any time
prior to the tenth day after a person becomes an Acquiring Person. The
Stockholder Rights Plan and the Rights expire in April 2004.
DELAWARE LAW AND CERTAIN CHARTER AND BYLAW PROVISIONS
The Company is subject to Section 203 of the Delaware General
Corporation Law (the "DGCL"). In general, Section 203 prevents an interested
stockholder (defined generally as any person owning 15% or more of a Delaware
corporation's outstanding voting stock) from engaging in a business combination
(as defined herein) with a Delaware corporation for a period of three years from
the date such person becomes an interested stockholder, unless (i) before such
person became an interested stockholder, the board of directors of the
corporation approved the transaction in which the interested stockholder became
an interested stockholder or approved the business combination; (ii) upon
consummation of the transaction that resulted in the interested stockholder's
becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding stock held by directors who are also officers
of the corporation and by employee stock plans that do not provide employees
with the rights to determine confidentially whether the shares held subject to
the plan will be tendered in a tender or exchange offer); or (iii) following the
transaction in which such person became an interested stockholder, the business
combination is approved by the board of directors of the corporation and
authorized at a meeting of stockholders by the affirmative vote of the holders
of at least two-thirds of the outstanding voting stock of the corporation not
owned by the interested stockholder. Under Section 203, the restrictions
described above also do not apply to certain business combinations proposed by
an interested stockholder following the announcement or notification of one of
certain extraordinary transactions involving the corporation and a person who
had not been an interested stockholder with the approval of a majority of the
directors who were directors prior to any person becoming an interested
stockholder during
21
the previous three years or who were recommended for election or elected to
succeed such directors by a majority of such directors. By restricting the
ability of the Company to engage in business combinations with an interested
person, the application of Section 203 to the Company may provide a barrier to
hostile or unwanted takeovers.
Pursuant to provisions of the DGCL, the Company has included in its
Restated Certificate of Incorporation a provision that, to the fullest extent
permitted by the DGCL, the Company's directors will not be liable for monetary
damages for breach of their fiduciary duty of care to the Company and its
stockholders. The DGCL provides that directors of a company will not be
personally liable for monetary damages for breach of their fiduciary duties as
directors, except for liability (i) for any breach of their duty of loyalty to
the company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (unlawful payments of dividends or unlawful stock
repurchases or redemptions), or (iv) for any transaction from which the director
derived an improper personal benefit. This provision also does not affect a
director's responsibilities under any other laws, such as the federal securities
laws or state or federal environmental laws.
The Company's Bylaws also contain provisions that require the Company to
indemnify its directors, officers, employees or other agents to the fullest
extent permitted by the DGCL, and to advance expenses to its officers and
directors as incurred. In addition, the Company has in place employment
agreements with certain of its officers providing coverage that is substantially
identical to the indemnification provisions in the Bylaws.
PLAN OF DISTRIBUTION
The Securities covered hereby may be offered and sold from time to time
by the Selling Holders. The Selling Holders will act independently of the
Company in making decisions with respect to the timing, manner and size of each
sale. There can be no assurance that the Selling Holders will sell any or all of
the Notes offered by them hereunder.
Sales of the Securities are, in general, expected to be made at the
market price prevailing at the time of each such sale; however, prices in
negotiated transactions may differ considerably.
Sales of the Notes may be made in the over-the-counter market or
otherwise, at market prices prevailing at the time of sale, at prices relating
to the then prevailing market prices or in negotiated transactions, including
without limitation pursuant to an underwritten offering or pursuant to one or
more of the following methods: (a) purchases by a broker-dealer as principal and
resale by such broker or dealer for its account pursuant to this Prospectus; (b)
ordinary brokerage transactions and transactions in which a broker solicits
purchasers; and (c) block trades in which a broker-dealer so engaged will
attempt to sell the Notes as agent but may take a position and resell a portion
of the block as principal to facilitate the transaction.
Sales of the shares of Common Stock issuable upon conversion of the
Notes, when issued upon such conversion, may be made on the New York Stock
Exchange, the Pacific Stock Exchange, in the over-the-counter market or
otherwise, at market prices prevailing at the time of sale, at prices relating
to the then prevailing market prices or in negotiated transactions, including
without limitation pursuant to an underwritten offering or pursuant to one or
more of the following methods: (a) purchases by a broker-dealer as principal and
resale by such broker or dealer for its account pursuant to this Prospectus; (b)
ordinary brokerage transactions and transactions in which a broker solicits
purchasers; and (c) block trades in which a broker-dealer so engaged will
attempt to sell the shares as agent but may take a position and resell a portion
of the block as principal to facilitate the transaction.
The Company has been advised that, as of the date hereof, the Selling
Holders have made no arrangement with any broker for the offering or sale of the
Securities. Underwriters, brokers, dealers or agents may participate in such
transactions as agents and may, in such capacity, receive brokerage commissions
from the Selling Holders or purchasers of such securities. Such underwriters,
brokers, dealers or agents may also purchase any of the Securities and resell
such Securities for their own account. The Selling Holders and such
underwriters, brokers, dealers or agents may be considered "underwriters" as
that term is defined by the Securities Act, although the Selling Holders
disclaim such status. Any commissions, discounts or profits received by such
underwriters, brokers, dealers or agents in connection with the foregoing
transactions may be deemed to be underwriting discounts and commissions under
the Securities Act.
To comply with the securities laws of certain jurisdictions, if
applicable, the Securities will be offered or sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in certain
jurisdictions, the Securities
22
may not be offered or sold unless they have been registered or qualified for
sale in such jurisdictions or unless an exemption from such registration or
qualification is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the Securities may be limited in its ability
to engage in market activities with respect to such Securities. In addition and
without limiting the foregoing, each Selling Holder is subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including, without limitation, rules 10b-2, 10b-5, 10b-6 and 10b-7, which
provisions may limit the timing of purchases and sales of any of the Securities
by the Selling Holders. All of the foregoing may affect the marketability of the
Securities.
The Company may suspend the use of this Prospectus and any supplements
hereto in certain circumstances due to pending corporate developments, public
filings with the Commission or similar events. The Company is obligated in the
event of such suspension to use its reasonable efforts to ensure that the use of
the Prospectus may be resumed as soon as practicable.
The Company has agreed to pay substantially all of the expenses incident
to the registration, offering and sale of the Securities to the public other
than commissions and discounts of agents, dealers or underwriters. The Company
has also agreed to indemnify the Selling Holders against certain liabilities,
including certain liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for
the Company by Gerald A. Morton, Corporate Secretary and Associate General
Counsel of the Company. Mr. Morton indirectly owns approximately 1,400 shares of
Common Stock through the Company's tax advantaged savings plan and options to
purchase an aggregate of 22,000 shares of Common Stock, which are or become
exercisable in periodic installments through August 1, 1999.
EXPERTS
The audited consolidated financial statements of the Company
incorporated by reference in this Prospectus have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in giving said report.
The estimates of oil and gas reserves and discounted present values of
estimated future net revenues incorporated by reference in this Prospectus were
prepared by Ryder Scott and are attached as an exhibit to the Annual Report.
Such information is incorporated by reference herein in reliance upon the
authority of said firm as experts with respect to the matters contained in such
report.
23
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE NOTES IN ANY JURISDICTION WHERE, OR TO ANY
INDIVIDUAL WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE
FACTS SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE
DATE HEREOF.
TABLE OF CONTENTS
PAGE
Available Information.................... 3
Incorporation of Certain Documents
by Reference........................... 3
Forward Looking Statements............... 4
Prospectus Summary....................... 5
Risk Factors............................. 7
Ratio of Earnings to Fixed Charges....... 10
The Company ............................. 10
Use of Proceeds.......................... 10
The Selling Holders ..................... 11
Description of the Notes................. 13
Description of Capital Stock............. 20
Plan of Distribution..................... 22
Legal Matters............................ 23
Experts.................................. 23
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$115,000,000
[LOGO]
POGO PRODUCING COPMANY
5 1/2% CONVERTIBLE SUBORDINATED NOTES DUE 2006
-------------------
PROSPECTUS
-------------------
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses to be incurred in connection with the Offering
described in this Registration Statement are as follows:
Securities and Exchange Commission registration fee ................ $39,656
National Association of Securities Dealers, Inc. filing fee ........ 0
Printing and engraving expenses .................................... 1,000
Accounting fees and expenses ....................................... 2,000
Legal fees and expenses ............................................ 2,000
Trustee's fees and expenses ........................................ 0
Blue Sky fees and expenses ......................................... 0
Rating agency fees ................................................. 0
Miscellaneous ...................................................... 40,344
-------
Total .......................................................... $85,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, inter alia,
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of another corporation or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding 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. Similar indemnity is authorized for such persons against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person 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 provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The Company
maintains policies insuring its and its subsidiaries' officers and directors
against certain liabilities for actions taken in such capacities, including
liabilities under the Securities Act of 1933, as amended.
The Bylaws of the Registrant contain the following provisions:
ARTICLE VII
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION.
The Corporation shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, 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,
II - 1
employee, fiduciary or agent of another corporation or of a partnership, joint
venture, trust, enterprise or non-profit entity including service with respect
to employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
SECTION 2. PREPAYMENT OF EXPENSES.
The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in his capacity as a
director or officer (except with regard to service to an employee benefit plan
or non-profit organizations) in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the director or
officer to repay all amounts advanced if it should be ultimately determined that
the director or officer is not entitled to be indemnified under this Article or
otherwise.
SECTION 3. CLAIMS.
If a claim for indemnification or payment of expenses under this Article
is not paid in full within ninety days after a written claim therefor has been
received by the Corporation the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part, shall be entitled
to be paid the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not entitled
to the requested indemnification or payment of expenses under applicable law.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS.
The rights conferred on any person by this Article shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, these Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 5. AMENDMENT OR REPEAL.
Any repeal or modification of the foregoing provisions of this Article
VII shall not adversely affect any right or protection hereunder of any person
in respect of any act or omission occurring prior to the time of such repeal or
modification.
The Registrant has placed in effect insurance which purports (a) to
insure it against certain costs of indemnification which may be incurred by it
pursuant to the aforementioned Bylaw provision or otherwise and (b) to insure
the officers and directors of the Company and of specified subsidiaries against
certain liabilities incurred by them in the discharge of their functions as
officers and directors except for liabilities arising from their own
malfeasance.
Reference is made to the Purchase Agreement contained in Exhibit 1
hereof for provisions regarding indemnification under certain circumstances of
the Registrant and its directors, officers and controlling persons.
See "Item 17. Undertakings" for information concerning the position of
the Securities and Exchange Commission regarding indemnification provisions.
ITEM 16. EXHIBITS.
*4-(a) Indenture dated as of June 15, 1996 between the Company and Fleet
National Bank, as Trustee (Form 10-Q, June 30, 1996, SEC File No. 0-5468,
Exhibit 4(f)).
*4-(b) Form of Note, included in Exhibit 4(a).
4-(c) Registration Rights Agreement, dated as of June 18, 1996 by and among
the Company, Goldman, Sachs & Co., Merrill Lynch & Co. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
4-(d) Purchase Agreement dated as of June 11, 1996 by and among the Company,
Goldman, Sachs & Co., Merrill Lynch & Co. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
5 Opinion of Gerald A. Morton
12 Statement Re Computation of Ratio of Earnings to Fixed Charges
23-(a) Consent of Arthur Andersen LLP
23-(b) Consent of Ryder Scott Company Petroleum Engineers.
II - 2
23-(c) Consent of Gerald A. Morton (contained in his opinion filed as Exhibit
5).
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Fleet National Bank.
- ---------
* Incorporated by reference.
ITEM 17. UNDERTAKINGS.
The undersigned 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, as amended (the "Securities Act"), (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; 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 clauses (i) ad (ii) of this paragraph do not
apply if the information required to be included in a post-effective
amendment by those clauses is contained in the 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 purpose of determining liability under the
Securities Act, 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; and
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934, as amended, 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.
Insofar as indemnification for liabilities arising under the Securities
Act 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 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 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 and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
II - 3
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 Houston, State of Texas, on the 13th day of
September, 1996.
POGO PRODUCING COMPANY
(Registrant)
By: PAUL G. VAN WAGENEN
Paul G. Van Wagenen
(Chairman of the Board,
President and Chief
Executive Officer)
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
Chairman of the Board, President
and Chief Executive Officer
PAUL G. VAN WAGENEN (Principal Executive Officer
Paul G. Van Wagenen and Director) September 13, 1996
John W. Elsenhans, Vice
President and Treasurer
JOHN W. ELSENHANS (Principal Financial Officer) September 13, 1996
John W. Elsenhans
THOMAS E. HART Vice President and Controller
Thomas E. Hart (Principal Accounting Officer) September 13, 1996
TOBIN ARMSTRONG* Director
Tobin Armstrong
JACK S. BLANTON* Director
Jack S. Blanton
W. M. BRUMLEY, JR.* Director
W. M. Brumley, Jr.
II - 4
JOHN B. CARTER, JR.* Director
John B. Carter, Jr.
WILLIAM L. FISHER* Director
William L. Fisher*
WILLIAM E. GIPSON* Director
William E. Gipson
GERRIT W. GONG* Director
Gerrit W. Gong
J. STUART HUNT* Director
J. Stuart Hunt
FREDERICK A. KLINGENSTEIN* Director
Frederick A. Klingenstein
NICHOLAS R. PETRY* Director
Nicholas R. Petry
JACK A. VICKERS* Director
Jack A. Vickers
*By THOMAS E. HART
(Thomas E. Hart, Attorney-in-Fact)
II - 5
EXHIBIT 4(C)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 18, 1996 (this
"Agreement"), by and among Pogo Producing Company, a Delaware corporation (the
"Company"), and Goldman, Sachs & Co. ("GS"), and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated (together, "ML") (GS and ML being
referred to hereinafter collectively as the "Purchasers").
RECITALS
WHEREAS, the Company, GS and ML have entered into a Purchase Agreement,
dated June 11, 1996 (the "Purchase Agreement"), providing for, among other
things, the sale by the Company and the purchase by the Purchasers of an
aggregate of U.S.$100,000,000 principal amount, and, at the election of the
Purchasers, up to an aggregate of U.S.$15,000,000 additional principal amount,
of the Company's 5 1/2% Convertible Subordinated Notes due June 15, 2006,
convertible into shares of Common Stock (as defined herein) of the Company as
provided in the Indenture (as defined herein); and
WHEREAS, this Agreement is being entered into pursuant to the Purchase
Agreement as a condition to the closing of the sale of the Securities (as
defined herein) pursuant thereto;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "CLOSING DATE" shall mean the First Time of Delivery as
defined in the Purchase Agreement.
(b) "COMMISSION" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.
(c) "COMMON STOCK" means the Common Stock, par value $1.00 per
share, of the Company, and any securities of the Company or any
successor which may be issuable upon conversion of the Securities
pursuant to Article Thirteen of the Indenture.
(d) "EFFECTIVE TIME" shall mean the date on which the Commission
declares the Registration Statement effective or on which the
Registration Statement otherwise becomes effective.
(e) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, or any successor thereto, as the same shall be amended from time
to time.
<PAGE>
(f) The term "HOLDER" shall mean any person that is the record
owner of Registrable Securities or any person that has a beneficial
interest in a global security representing Registerable Securities.
(g) "INDENTURE" shall mean the Indenture, dated as of June 15,
1996, between the Company and Fleet National Bank, as Trustee, as
amended and supplemented from time to time in accordance with its terms.
(h) The term "MANAGING UNDERWRITER OR UNDERWRITERS" shall mean
the person or persons selected pursuant to Section 7(a) of this
Agreement to manage an underwritten offering of Registrable Securities.
(i) The term "PERSON" shall have the meaning specified in the
Indenture.
(j) "PROSPECTUS" shall mean the prospectus (including any
preliminary prospectus and any final prospectus) included in any
Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of
the Registrable Securities covered by the Registration Statement and by
all other amendments and supplements to such prospectus, including all
material incorporated by reference in such prospectus and all documents
filed after the date of such prospectus by the Company under the
Exchange Act and incorporated by reference therein.
(k) "REGISTRABLE SECURITIES" shall mean all or any portion of the
Securities issued under the Indenture in registered form and the shares
of Common Stock issuable upon conversion of such Securities; PROVIDED,
HOWEVER, that a security ceases to be a Registrable Security when it is
no longer a Restricted Security.
(l) "REGISTRATION EXPENSES" shall have the meaning assigned
thereto in Section 4 of this Agreement.
(m) "REGISTRATION STATEMENT" shall mean a "shelf" registration
statement filed under the Securities Act providing for the registration
of, and the sale on a continuous or delayed basis by the holders of, all
of the Registrable Securities pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission, filed
by the Company pursuant to the provisions of Section 2 of this
Agreement, including the Prospectus contained therein, any amendments
and supplements to such registration statement, including post-effective
amendments, and all exhibits and all material incorporated by reference
in such registration statement.
(n) "RESTRICTED SECURITY" shall mean any Security or share of
Common Stock issuable upon conversion thereof unless or until (i) it has
been effectively registered under the Securities Act and sold in a
manner contemplated by the Registration Statement, (ii) it has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or (iii) it has otherwise been transferred
and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf
of the Company in accordance with Section 305 of the Indenture.
(o) "RULES AND REGULATIONS" shall mean the published rules and
regulations of
-2-
the Commission promulgated under the Securities Act or the Exchange Act,
as in effect at any relevant time.
(p) "SECURITY" OR "SECURITIES" shall mean the Company's 5 1/2%
Convertible Subordinated Notes due 2006, to be issued pursuant to the
Indenture and sold pursuant to the Purchase Agreement and any securities
issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
(q) "SECURITIES ACT" shall mean the Securities Act of 1933, or
any successor thereto, as the same shall be amended from time to time.
(r) "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
(s) The term "UNDERWRITER" shall hereinafter mean any underwriter
of an underwritten offering of Registrable Securities.
(t) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of the Registrable Securities or to
a percentage of Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities which was surrendered
for conversion in order to receive such number of shares of Common
Stock.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) The Company shall, at its expense, within 90 calendar days following
the Closing Date, file with the Commission a Registration Statement with respect
to the Registrable Securities as to which the Company has obtained the
information contemplated by Section 3(d) and thereafter shall use its reasonable
best efforts to cause such Registration Statement to be declared effective by
the Commission under the Securities Act within 180 calendar days after the
Closing Date.
(b) Subject to Section 2(c) hereof, the Company shall use its reasonable
best efforts, and will file such supplements or amendments to the Registration
Statement as may be necessary or appropriate, to keep the Registration Statement
continuously effective under the Securities Act and usable by holders for
resales of Registrable Securities for a period of three years from the Effective
Time or, such shorter period that will terminate upon the earlier of the
following: (i) when there are no outstanding Registrable Securities and (ii)
when, in the written opinion of independent counsel to the Company, all
outstanding Registrable Securities held by persons that are not "affiliates" of
the Company (as defined in Rule 144(a)(1) under the Securities Act) may be
resold without registration under the Securities Act pursuant to Rule 144(k)
under the Securities Act (or any successor provision to such Rule) (and
thereupon the Company shall remove all legends from the Registrable Securities
restricting the transfer thereof (other than any Registrable Securities held by
an affiliate)).
(c) (i) If the Company determines in its good faith judgment that the
filing of the Registration Statement, or of any supplement or amendment
to the Registration Statement to keep such Registration Statement
continuously effective under the Securities Act and usable by holders
for resales of Registrable Securities, would require
-3-
the disclosure of material information that the Company has a bona fide
business purpose for preserving as confidential or the disclosure of
which would materially adversely affect the Company's ability to
consummate a significant transaction, upon written notice of such
determination by the Company, the obligation of the Company to file,
supplement or amend the Registration Statement (including any action
contemplated
-4-
by Section 3 hereof) will be suspended until the Company notifies the
holders in writing that the reasons for suspension of such obligations
on the part of the Company as set forth in this Section 2(c)(i) no
longer exist; provided that no such suspension shall last more than 60
consecutive days.
(ii) If the Company initiates and is in good faith pursuing an
underwritten primary offering of equity securities (as defined in Rule
405 under the Securities Act) (which primary offering may also include
secondary sales of securities of the Company) on a registration
statement (other than any registration by the Company on Form S-8, or a
successor or substantially similar form, of an employee stock option,
stock purchase or compensation plan or of securities issued or issuable
pursuant to any such plan), the obligation of the Company to supplement
or amend the Registration Statement, shall be suspended during the
registration period of such underwritten primary equity offering.
(d) Notwithstanding the provisions of Section 2(c) hereof, the aggregate
number of days (whether or not consecutive) during which the Company may delay
the filing of any such supplement or amendment shall in no event exceed 90 days
during any period of 12 consecutive months and the right of the Company to
suspend its obligation to supplement or amend the Registration Statement under
Section 2(c) shall not limit any obligation the Company may have to pay
additional interest pursuant to Section 1007 of the Indenture.
3. REGISTRATION PROCEDURES.
(a) Prior to or at the Effective Time the Company shall use its
reasonable best efforts to qualify the Indenture under the Trust Indenture Act;
in connection with such qualification, the Company shall cooperate with the
trustee under the Indenture and the Holders (as defined in the Indenture) to the
effect such changes to the Indenture may be required for such Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act; and the
Company shall execute, and use all reasonable efforts to cause the trustee under
the Indenture to execute, all documents that may be required to effect such
changes and other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner.
(b) In the event that any such amendment or modification referred to in
Section 3(a) hereof involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
Registration Statement, the Company shall use its reasonable best efforts to
effect or cause the Registration Statement to permit the sale of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of distribution thereof described in the Registration Statement;
provided, however, that such method or methods of distribution may take the form
of an underwritten offering of the Registrable Securities only as provided in
Section 7 hereof. In connection therewith, the Company shall, as promptly as
possible:
(i) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, including documents incorporated by
reference in the Registration Statement, offer to provide, and if
requested, furnish to the holders of the Registrable Securities covered
by such Registration Statement and the managing underwriter or
underwriters, if any, of Registrable Securities being sold in an
underwritten offering copies of all such documents proposed to be filed,
together with copies of documents previously filed with the Commission
and proposed to be incorporated by reference in the Registration
Statement, which Registration Statement or Prospectus or
-5-
any supplement or amendment thereto (but not any document incorporated
by reference therein) will be subject to the review of such holders and
managing underwriter or underwriters, and the Company will not file the
Registration Statement or any amendment thereto or any Prospectus or any
supplement thereto (including documents filed with the Commission under
the Exchange Act after the initial filing of the Registration Statement
and incorporated by reference in the Registration Statement) to which GS
or ML or, if GS or ML is not a selling holder, the holders of at least
20% in aggregate principal amount of the Registrable Securities covered
by such Registration Statement or the managing underwriter or
underwriters, if any, shall reasonably object; PROVIDED that the Company
may assume, for the purposes of this subparagraph (i), that objections
to the inclusion of information specifically requested to be included in
the Registration Statement or other documents by the staff of the
Commission, or in the opinion of counsel to the Company required to be
in the Registration Statement or other documents, or specifically
required by the Securities Act or the Rules and Regulations, shall not
be deemed to be reasonable;
(ii) for a reasonable period prior to the filing of the
Registration Statement and throughout the period specified in Section
2(b) hereof, make available for inspection (solely for the purpose of
verifying the accuracy of information contained in the Registration
Statement) by a representative or representatives of GS or ML or, if GS
or ML is not then a holder, the holders of not less than 20% of the
principal amount of the Registrable Securities, any underwriter
participating in any disposition pursuant to a Registration Statement,
and any attorney or accountant retained by GS or ML or such selling
holders or underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and agents, including
independent public accounts and counsel, to supply all information
reasonably requested by any such representative, underwriter, attorney
or accountant in connection with such Registration Statement; PROVIDED
that any records, information or documents that are designated by the
Company in writing as confidential shall be kept confidential by such
persons unless disclosure of such records, information or documents is
required by court or administrative order;
(iii) subject to the provisions of Section 2(c) above, prepare
and file with the Commission such amendments and post-effective
amendments to the Registration Statement, and such supplements to the
Prospectus, as may be required by the Rules and Regulations or the
instructions applicable to the registration form utilized by the Company
or by the Securities Act or otherwise necessary to keep the Registration
Statement effective for the period specified in Section 2(b) and cause
the Prospectus as so supplemented to be filed pursuant to Rule 424 under
the Securities Act; and comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by
such Registration Statement during the period specified in Section 2(b)
in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iv) notify the selling holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly, and confirm such
advice in writing,
(A) when the Registration Statement, any pre-effective
amendment thereto, the Prospectus or any prospectus supplement or
post-effective amendment to the Registration Statement has been
filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective,
-6-
(B) of any comments by the Commission or the "Blue Sky" or
securities commissioners or regulator of any State with respect
to the Registration Statement, the Prospectus or any prospectus
supplement or any request by the Commission or any securities
commissioner or regulator for amendments or supplements to the
Registration Statement, the Prospectus or any prospectus
supplement or for additional information,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of
the Company contemplated by subparagraph (xiv) below or Section 5
hereof cease to be true and correct,
(E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale under the securities or "Blue Sky" laws of
any jurisdiction or the initiation or threatening of any
proceeding for such purpose, and
(F) of the existence of any fact or the happening of any
event during the period (other than any suspension period
referred to in Section 2(c) hereof) during which the Registration
Statement is required hereunder to be effective as a result of
which the Registration Statement, any amendment or post-effective
amendment thereto, the Prospectus, any prospectus supplement, or
any document incorporated therein by reference contain an untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(v) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at
the earliest possible moment;
(vi) if requested by any managing underwriter or underwriters or
any holder of Registrable Securities being sold pursuant to an
underwritten offering, as soon as practicable incorporate in a
prospectus supplement or post-effective amendment to the Registration
Statement such information as is required by the applicable Rules and
Regulations and as the managing underwriter or underwriters or such
holder specifies should be included therein relating to the terms of the
sale of the Registrable Securities, including, without limitation,
information with respect to the principal amount or number of shares of
Registrable Securities being sold by such holder to any underwriter or
underwriters, the name and description of such holder or underwriter,
the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriter or underwriters
and with respect to any other terms of the underwritten offering
(including whether such underwriting commitment is on a firm commitment
or best efforts basis) of the Registrable Securities to be sold in such
offering; and make all required fillings of such prospectus supplement
or post-effective amendment promptly after being notified of the matters
to be incorporated in such prospectus supplement or post-effective
amendment;
(vii) furnish to each selling holder of Registrable Securities
and each managing
-7-
underwriter, if any, without charge, an executed copy of the
Registration Statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by
reference therein) and such number of copies of the Registration
Statement (including exhibits thereto and documents incorporated by
reference therein) as such persons may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities;
(viii) deliver to each selling holder of Registrable Securities
and each managing underwriter, if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto, and such other documents, as such persons may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities and to permit any of such persons to
satisfy the prospectus delivery requirements of the Securities Act; the
Company hereby consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable
Securities and by each underwriter thereof, if any, in connection with
the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto; and as promptly as
practicable after the filing with the Commission of any document which
is incorporated by reference in the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto) deliver
a copy of such document to each holder of Registerable Securities
covered by the Registration Statement who requests such documents in
writing from the Company;
(ix) prior to any public offering of Registrable Securities, use
reasonable efforts to (A) register or qualify the Registrable Securities
covered by the Registration Statement for offer and sale under the
securities or "Blue Sky" laws of such jurisdictions as any selling
holder or underwriter reasonably shall request, (B) keep such
registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in
such jurisdictions for so long as may be necessary (but not to exceed
three years from the Effective Time) to enable any such holder or
underwriter to complete its distribution of Registrable Securities
pursuant to the Registration Statement and (C) take any and all other
actions as may be reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities;
PROVIDED, HOWEVER, that the Company shall not be required for any such
purpose to qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the requirements
of this Section 3(c)(ix) or consent to general service of process in any
such jurisdiction;
(x) cooperate with the selling holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends and which, if so required by any securities exchange upon which
any Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders; and enable such Registrable Securities to be in such
denominations and registered in such names as the selling holder or the
managing underwriter or underwriters, if any, may request at least two
business days prior to any delivery of Registrable Securities;
(xi) use reasonable efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved
by such other governmental agencies or authorities (federal, state and
local) as may be necessary to enable the seller or sellers thereof or
the underwriter or underwriters, if any, to consummate the disposition
of such Registrable Securities;
-8-
(xii) if any fact or event contemplated by subparagraph (iv)(F)
above shall exist or occur, prepare a post-effective amendment or
supplement to the Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other
required document so that the Prospectus, as thereafter delivered to the
purchasers of the Registrable Securities, will not contain an untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(xiii) use reasonable efforts to cause the shares of Common Stock
constituting Registrable Securities covered by the Registration
Statement to qualify for trading on the New York Stock Exchange or, if
the Common Stock is not then traded on the New York Stock Exchange, to
list such shares on each securities exchange on which outstanding Common
Stock of the Company is then listed, if any;
(xiv) enter into such customary agreements (including a customary
underwriting agreement with the underwriter or underwriters, if any,
which shall include only such "lock-up arrangements", if any, as shall
be agreeable to the Company and the underwriter or underwriters) and
take all such other actions reasonably necessary in connection therewith
in order to expedite or facilitate the disposition of any Registrable
Securities and, in such connection, whether or not an underwriting
agreement is entered into and whether or not the Registrable Securities
are to be sold in an underwritten offering:
(A) make such representations and warranties to the
holders of such Registrable Securities and the underwriter or
underwriters, if any, in form, substance and scope as are
customarily made in connection with primary underwritten
offerings of equity or convertible debt securities;
(B) cause to be delivered to the sellers of Registrable
Securities and the underwriter or underwriters, if any, opinions
of counsel to the Company, dated the effective date of the
Registration Statement and, in the case of an underwritten
offering, the date of delivery of any Registrable Securities sold
pursuant thereto (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriter or underwriters, if any, and the appointed
representative of or counsel to the holders of at least 50% in
aggregate principal amount of the Registrable Securities being
registered (or, in the case of an underwritten offering, sold),
addressed to each selling holder and each underwriter, if any,
covering the matters customarily covered in opinions requested in
primary underwritten offerings of equity and convertible debt
securities;
(C) cause to be delivered on the effective date of the
Registration Statement, the date of the Prospectus and the
effective date of the most recent post-effective amendment to the
Registration Statement, and at the time of the signing of the
underwriting or purchase agreement and at the time of delivery of
any Registrable Securities sold pursuant thereto, letters from
the Company's independent public accountants addressed to each
selling holder and each underwriter stating that such accountants
are independent public accountants within the meaning of the
Securities Act and the applicable published Rules and Regulations
thereunder, and otherwise in customary form and covering such
financial and accounting matters as are customarily covered by
letters of independent certified public accountants delivered in
connection with primary underwritten public offerings of equity
or convertible debt securities;
-9-
(D) if an underwriting agreement is entered into, cause
the same to set forth in full the indemnification provisions and
procedures of Section 6 hereof (or such other provisions and
procedures satisfactory to the managing underwriter or
underwriters and the Company) with respect to all parties to be
indemnified pursuant to said Section;
(E) deliver such documents and certificates as may be
reasonably requested by any holder of Registrable Securities
being sold or the managing underwriter or underwriters, if any,
to evidence the accuracy of the representations contemplated by
clause (A) above and compliance with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company in connection with such offering.
(xv) otherwise use its reasonable best efforts to comply with all
applicable Rules and Regulations, and make generally available to its
security holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act no later than 45 days after the end
of any 12-month period (or 90 days, if such period is a fiscal year) (A)
commencing at the end of any fiscal quarter in which the Registrable
Securities are sold in an underwritten offering, or, if not sold in such
an offering, (B) commencing with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statements shall cover said 12-month periods;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by the Company to amend or waive any provision of this
Agreement pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the case may be; and
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall be an "Affiliate" (as defined in Schedule E to the
By-Laws of the National Association of Securities Dealers, Inc.
("NASD")) of the Company or has a "Conflict of Interest" (as defined in
such Schedule) and such broker-dealer shall underwrite, participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of such Schedule) of any Registrable
Securities, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Schedule, including, without limitation, by (A)
engaging a "qualified independent underwriter" (as defined in such
Schedule) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and to recommend the
public offering price of such Registrable Securities, (B) indemnifying
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof, and (C)
providing such information within the possession of the Company to such
broker-dealer as may be reasonably required in order for such
broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD.
(d) The Company may require each selling holder of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such holder, the Registrable Securities held
by such holder, and the distribution of such Registrable Securities as the
Company may from time to time request in writing, but only to the extent that
such information shall be required by law or by the Commission in connection
with any registration. Each such holder agrees, by the acquisition of
Registrable Securities, to notify
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the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to the Company or of the
occurrence of any event in either case as a result of which any Prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities or omits to state any material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities necessary to make the statements therein, in light of the
circumstances then existing, not misleading and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such Prospectus shall not contain,
with respect to such holder or the distribution of such Registrable Securities,
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances then
existing, not misleading.
(e) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(c)(iv)(F) hereof or of
the commencement of any suspension period referred to in Section 2(c)(i) hereof,
such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement until such holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(c)(xii)
hereof, or until it is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by the Company, such holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
holder's possession of the Prospectus covering such Registrable Securities at
the time of receipt of such notice.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including, without limitation, (a) all
Commission and any NASD registration and filing fees and expenses, (b) all fees
and expenses in connection with the registration or qualification of the
Registrable Securities for offering and sale under the State securities and blue
sky laws referred to in Section 3(c)(ix) hereof and determines their eligibility
for investment under the laws of such jurisdiction as the managing underwriter
or underwriters, if any, or the holders of such Registrable Securities may
designate, including reasonable fees and disbursements, if any, of counsel for
the selling holders or underwriters in connection with such registrations or
qualifications and determinations, (c) all expenses relating to the preparation,
printing, distribution and reproduction of the Registration Statement required
to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Registrable Securities for delivery and the expenses
of reproducing any underwriting agreement(s), agreement(s) among underwriters
and "Blue Sky" or legal investment memoranda, any selling agreements and all
other documents in connection with the offering, sale or delivery of Registrable
Securities to be disposed of, (d) fees and expenses of any Trustee under the
Indenture, any Transfer Agent and Registrar with respect to the Registrable
Securities and any escrow agent or custodian, (e) internal expenses of the
Company (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), (f)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(g) fees, disbursements and expenses of one counsel for the holders of
Registrable Securities retained in connection with such registration, as
selected by
-11-
the holders of at least 50% in aggregate principal amount of the outstanding
Registrable Securities being registered, (h) fees, expenses and disbursements of
any other persons, including special experts, retained by the Company in
connection with such registration, (i) disbursements of any managing underwriter
or underwriters in connection with the offering and sale of Registrable
Securities under the Registration Statement (excluding commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals) and (j) all fees and expenses incurred in connection with the
qualification of the shares of Common Stock constituting Registrable Securities
for trading on the New York Stock Exchange, or the listing of such shares on any
securities exchange, pursuant to Section 3(c)(xiii) (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities or any
underwriter thereof, the Company shall reimburse such person for the full amount
of the Registration Expenses so incurred, assumed or paid promptly after receipt
of a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above, and all fees,
disbursements and expenses of any "qualified independent underwriters" engaged
pursuant to Section 3(c)(xvii).
5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, the Purchasers
and each of the holders from time to time of Registrable Securities that:
(a) Each Registration Statement and each Prospectus contained
therein or furnished pursuant to Sections 3(c)(vii) and 3(c)(viii)
hereof and any further amendments or supplements to any such
Registration Statement or Prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been
given to holders of Registrable Securities pursuant to Section
3(c)(iv)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(c)(xii) hereof,
the Registration Statement, and the Prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c)(vii)
or 3(c)(viii) hereof, as then amended or supplemented, will conform in
all material respects to the requirements of the Securities Act and will
not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances then existing, not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an underwriter in connection with
an offering or by a holder of Registrable Securities expressly for use
therein.
(b) Any documents incorporated by reference in any Prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will
conform or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of
-12-
such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(c) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any subsidiary thereof is a party or by which
the Company or any subsidiary thereof is bound or to which any of the
property or assets of the Company or any subsidiary thereof is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation, as amended and restated, or the Bylaws, as
amended, of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any subsidiary thereof or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Securities Act of the
Registrable Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or "Blue Sky" laws or foreign laws in connection with the
offering and distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly authorized, executed and
delivered by the other parties hereto, will constitute a valid and
legally binding obligation of the Company enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Purchasers contained herein and in the Purchase Agreement, and
as an inducement to the Purchasers to enter into such Agreements, the Company
shall, and it hereby agrees to, indemnify and hold harmless each of the holders
of Registrable Securities to be included in such registration, each underwriter,
selling agent or placement agent with respect to the Registrable Securities and
each of their respective officers, directors, employees and agents and each
person who controls such holder or underwriter, selling agent or placement agent
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes referred to as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or several,
to which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Securities were registered under the Securities
Act, or any Prospectus contained therein or furnished by the Company to any
Indemnified Person, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company shall, and it hereby agrees to, reimburse such
Indemnified Person for any reasonable legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim; PROVIDED, HOWEVER, that the Company
-13-
shall not be liable to any such Indemnified Person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement or Prospectus, or amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Indemnified Person expressly
for use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS. The
Company may require, as a condition to including any Registrable Securities in
any Registration Statement filed pursuant to this Agreement and to entering into
any underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from the holder of such
Registrable Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless the
Company, its directors, officers who sign any Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or such other persons may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, or any Prospectus contained
therein or furnished by the Company to any such holder or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished in writing to the Company by or
on behalf of such holder or underwriter expressly for use therein, and (ii)
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim;
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault,
-14-
culpability or a failure to act, by or on behalf of any indemnified party.
(d) CONTRIBUTION. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The holders'
and any underwriters' obligations in this Section 6(d) to contribute shall be
several in proportion to the percentage of principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
(e) Notwithstanding any other provision of this Section 6, in no event
will any (i) holder be required to undertake liability to any person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds to be
received by such holder from the sale of such holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to such registration and (ii) underwriter be required to undertake
liability to any person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter with respect to the
Registrable Securities underwritten by it and distributed to the public pursuant
to any such underwriting agreement.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person, including any liability of the Company to the Purchasers
pursuant to Section 8 of the Purchase Agreement.
7. UNDERWRITTEN OFFERINGS.
(a) RIGHT TO EFFECT UNDERWRITTEN OFFERING. The holders of Registrable
Securities covered by the Registration Statement may sell such Registrable
Securities in an underwritten offering, provided that the holders of at least
20% in aggregate principal amount of the Registrable Securities initially
outstanding elect to participate in such an offering and except that any such
underwritten offering shall be suspended during the period specified in Section
2(c)(ii) and 2(d) hereof.
(b) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the
-15-
Registration Statement are to be sold pursuant to an underwritten offering, the
managing underwriter or underwriters thereof shall be designated by the holders
of at least 50% in aggregate principal amount of the outstanding Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Company.
(c) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with the Company and each other such holder that no such holder
may participate in any under written offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under Sections
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
under the Securities Act) and the Rules and Regulations, and shall take such
further action as shall be necessary to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company shall deliver to such holder a written statement as to
whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement grant registration rights with respect to Registrable
Securities or any other securities, or enter into any agreement with respect to
its securities, which prevents the exercise of or otherwise conflicts with the
provisions hereof. The Company is not currently a party to any agreement with
respect to any of its equity or debt securities granting any registration rights
to any person.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there may
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be given in the manner provided for in the
Indenture.
(d) PARTIES IN INTEREST. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto. In the event that
any transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest,
-16-
purchase, operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a party hereto for all purposes
and such Registrable Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of and be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) AMENDMENTS AND WAIVERS. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the holders of at least 662/3% of
the principal amount of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 9(h),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available upon reasonable prior written
notice for inspection and copying on any business day by any holder of
Registrable Securities at the offices of the Company at the address set forth in
the Indenture.
(j) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
POGO PRODUCING COMPANY
By: /s/ JOHN W. ELSENHANS
Name: John W. Elsenhans
Title: Vice President and Treasurer
GOLDMAN, SACHS & CO.
/s/ GOLDMAN, SACHS & CO.
(Goldman, Sachs & Co.)
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ ALAN J. BLACKBURN
Name:
Title:
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EXHIBIT 4(D)
POGO PRODUCING COMPANY
5 1/2% CONVERTIBLE SUBORDINATED NOTES
DUE JUNE 15, 2006
---------------
PURCHASE AGREEMENT
June 11, 1996
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Pogo Producing Company, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Purchasers named in Schedule I hereto (the "Purchasers") an aggregate of
U.S.$100,000,000 principal amount of the 5 1/2% Convertible Subordinated Notes
due June 15, 2006 (the "Firm Securities"), convertible into common stock, par
value U.S.$1.00 per share ("Stock"), of the Company, and, at the election of the
Purchasers, up to an aggregate of U.S.$15,000,000 additional aggregate principal
amount of such Notes (the "Optional Securities") solely to cover overallotments,
if any. The Firm Securities and the Optional Securities which the Purchasers
elect to purchase pursuant to Section 2 hereof are herein collectively called
the "Securities." As used herein, the term "Securities" shall be deemed, unless
the context otherwise requires, to include the Securities in the form of a
temporary global Security representing the Securities issued and sold in
reliance on Regulation S, and the term "Purchasers" shall be deemed to include
Goldman Sachs International and Merrill Lynch International, who are acting as
your selling agents in making certain resales of the Securities pursuant to
Section 3 hereof.
The Purchasers and other holders (including subsequent transferees) of
Securities in registered form without coupons will be entitled to the benefits
of the registration rights agreement, to be dated as of the Time of Delivery (as
defined below) (the "Registration Rights Agreement") among the Company and the
Purchasers, in the form attached hereto as Exhibit A. Pursuant to the
Registration Rights Agreement, the Company will agree to file with the United
States Securities and Exchange Commission (the "Commission") under the
circumstances set forth therein a shelf registration statement pursuant to Rule
415 under the United States Securities Act of 1933, as amended (the "Securities
Act"), relating to the resale of (i) such Securities and (ii) the shares of
Stock initially issuable upon conversion of the Securities by holders thereof,
and to use its reasonable efforts to cause such shelf registration statement to
be declared effective.
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1. The Company represents and warrants to, and agrees with, each of the
Purchasers that:
(a) An offering circular, dated June 11, 1996 (the "Offering
Circular"), including the international supplement thereto, has been
prepared in connection with the offering of the Securities and shares of
the Stock issuable upon conversion or exercise thereof. Any reference
herein to the Offering Circular shall be deemed to refer to and include
the Company's most recent Annual Report on Form 10-K, the Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996 and all
subsequent documents filed with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the United States Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or prior to the date of the
Offering Circular, and any reference to the Offering Circular, as
amended or supplemented, as of any specified date, shall be deemed to
include (i) any documents filed with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act after the date of the Offering
Circular, and prior to such specified date and (ii) any Additional
Issuer Information (as defined in Section 5(f) hereof) furnished by the
Company prior to the completion of the distribution of the Securities;
and all documents filed under the Exchange Act and so deemed to be
included in the Offering Circular or any amendment or supplement thereto
are hereinafter called the "Exchange Act Reports." The Exchange Act
Reports, when they were or are filed with the Commission, conformed or
will conform in all material respects to the applicable requirements of
the Exchange Act and the applicable rules and regulations of the
Commission thereunder. The Offering Circular and any amendments or
supplements thereto and the Exchange Act Reports did not and will not,
as of their respective dates, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by a Purchaser through Goldman, Sachs & Co. expressly for
use therein;
(b) Neither the Company, any of its subsidiaries nor Pogo Gulf
Coast, Ltd. ("PGCL") has sustained since the date of the latest audited
financial statements included in the Offering Circular any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Offering Circular; and, since the
respective dates as of which information is given in the Offering
Circular, there has not been any change in the capital stock or
long-term debt (except for changes in long-term debt that are not in
excess of $5 million) of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company, its subsidiaries and PGCL, considered as one
enterprise, otherwise than as set forth or contemplated in the Offering
Circular;
(c) Each of the Company, its subsidiaries and PGCL has (i)
generally satisfactory title to all their interest in their oil and gas
properties, title investigations having been carried out by the Company
in accordance with the practice in the oil and gas industry in the areas
in which the Company operates, (ii) good and marketable title to all
other real property owned by them to the extent necessary to carry on
their business, and (iii) good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Offering
Circular or such as do not materially affect the value of such property
and do not interfere with the use made and
-2-
proposed to be made of such property by the Company, its subsidiaries
and PGCL, considered as one enterprise;
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with all requisite corporate power and authority to own its
properties and conduct its business as described in the Offering
Circular, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; each corporate subsidiary of the
Company which is a significant subsidiary (each a "Significant
Subsidiary") as defined in Rule 405 of Regulation C of the Securities
Act Regulations is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
with all requisite corporate power and authority to own its properties
and conduct its business as described in the Offering Circular, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and PGCL is a limited partnership
duly organized pursuant to the provisions of the Texas Revised Limited
Partnership Act (or any predecessor statute thereof) and is validly
existing as a limited partnership in good standing under the laws of the
State of Texas, has the partnership power and authority to own its
properties and conduct its business as described in the Offering
Circular and has been qualified as a foreign partnership for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(e) The Company has an authorized capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable; the shares of Stock initially issuable
upon conversion of the Securities have been duly and validly authorized
and reserved for issuance and, when issued and delivered in accordance
with the provisions of the Securities and the Indenture referred to
below, will be duly and validly issued, fully paid and non-assessable
and will conform in all material respects to the description of the
Stock contained in the Offering Circular; and all of the issued shares
of capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares and except as otherwise set
forth in the Offering Circular) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(f) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company and entitled to the benefits
provided by the indenture to be dated as of June 15, 1996 (the
"Indenture") between the Company and Fleet National Bank, as Trustee
(the "Trustee"), under which they are to be issued, which will be
substantially in the form previously delivered to you; the Indenture has
been duly authorized and, when executed and delivered by the Company and
the Trustee, the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether such enforcement is
considered in
-3-
a proceeding in equity or at law); and the Securities and the Indenture
will conform in all material respects to the descriptions thereof in the
Offering Circular and will be in substantially the form previously
delivered to you;
(g) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Securities) will violate or result in a violation of Section 7 of
the Exchange Act, or any regulation promulgated thereunder, including,
without limitation, Regulations G, T, U, and X of the Board of Governors
of the Federal Reserve System;
(h) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Securities;
(i) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the offer, purchase and distribution of the
Securities by the Purchasers;
(j) Neither the Company, any of its subsidiaries nor PGCL is in
default in the performance or observance of any obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound, except as set
forth in the Offering Circular or to the extent any such default would
not have a material adverse effect on the business of the Company, its
subsidiaries and PGCL, considered as one enterprise; and neither the
Company, any of its subsidiaries nor PGCL is in violation of its
respective Certificate of Incorporation, Bylaws or partnership
agreement.
(k) The statements set forth in the Offering Circular under the
caption "Description of the Notes" and "Description of the Capital
Stock," insofar as they purport to constitute a summary of the terms of
the Securities and the shares of Stock, under the captions "Notice to
Investors," "United States Taxation" and "Offer and Resale," insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(l) Other than as set forth in the Offering Circular, there are
no legal or governmental proceedings pending to which the Company, any
of its subsidiaries or PGCL is a party or of which any property of the
Company, any of its subsidiaries or PGCL is the subject which, if
determined adversely to the Company, any of its subsidiaries or PGCL,
-4-
would individually or in the aggregate have a material adverse effect on
the current or future financial position, stockholders' equity or
results of operations of the Company, its subsidiaries and PGCL,
considered as one enterprise; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(m) Each of the Company, its subsidiaries and PGCL owns,
possesses or has obtained all governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations (the
"Governmental Authorizations") necessary to own or lease, as the case
may be, and to operate its properties and to carry on its business as
presently conducted, except where the failure to own, possess or obtain
such Government Authorizations would not, in the aggregate, have a
material adverse effect on the business of the Company, its subsidiaries
and PGCL, considered as one enterprise, and, except as disclosed in the
Offering Circular, neither the Company, any subsidiary nor PGCL has
received any notice of proceedings relating to revocation or
modification of any such licenses, permits, certificates, consents,
orders, approvals or authorizations which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have
a material adverse effect on the condition (financial or otherwise) or
the earnings or business affairs of the Company and its subsidiaries,
considered as one enterprise;
(n) Each of the Company, its subsidiaries and PGCL (i) is in
compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or waste, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and (iii) is in compliance
with all terms and conditions of any such permit, license or approval,
except for such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals that would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise) or the earnings
or business affairs of the Company and its subsidiaries, considered as
one enterprise;
(o) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the
meaning of Rule 144A under the Securities Act) as securities which are
listed on a national securities exchange registered under Section 6 of
the Exchange Act or quoted in a U.S. automated inter-dealer quotation
system;
(p) The Company is subject to Section 13 or 15(d) of the Exchange
Act;
(q) The Company is not, and after giving effect to the offering
and sale of the Securities, will not be an "investment company," or an
entity "controlled" by an "investment company," as such terms are
defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act");
(r) Neither the Company, nor any person acting on its or their
behalf has offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or, with respect to Securities sold outside the
United States to non-U.S. persons (as defined in Rule 902 under the
Securities Act), by means of any directed selling efforts within the
meaning of Rule 902 under the Securities Act and the Company, any
affiliate of the Company and any person acting on its or their behalf
has complied with and will implement the "offering restriction" within
the meaning of such Rule 902;
-5-
(s) Within the six months preceding the date hereof, neither the
Company nor any other person acting on behalf of the Company has offered
or sold to any person any Securities, or any securities of the same or a
similar class as the Securities, other than Securities offered or sold
to the Purchasers hereunder. The Company will take reasonable
precautions designed to insure that any offer or sale, direct or
indirect, in the United States or to any U.S. person (as defined in Rule
902 under the Securities Act) of any Securities or any substantially
similar security issued by the Company, within six months subsequent to
the date on which the distribution of the Securities has been completed
(as notified to the Company by Goldman, Sachs & Co.), is made under
restrictions and other circumstances reasonably designed not to affect
the status of the offer and sale of the Securities in the United States
and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Securities Act;
(t) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(u) Arthur Andersen & Co., who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder; and
(v) None of the holders of outstanding shares of capital stock of
the Company and no other person has or will have any preemptive or other
rights (other than the conversion rights of the Securities) to purchase,
subscribe for or otherwise acquire (i) the shares of Stock to be issued
upon conversion of the Securities or any rights to such shares or (ii)
as a result of or in connection with the transactions contemplated by
the Indenture or this Agreement, any other capital stock of the Company
or rights thereto.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 100% of the principal amount thereof, plus accrued interest, if any,
from June 18, 1996 to the Time of Delivery (as hereinafter defined), the
principal amount of Securities set forth opposite the name of such Purchaser in
Schedule I hereto, and (b) in the event and to the extent that the Purchasers
shall exercise the election to purchase Optional Securities as provided below,
the Company agrees to issue and sell to the Purchasers, and the Purchasers agree
to purchase from the Company, at the same purchase price set forth in clause (a)
of this Section 2, the aggregate principal amount of the Optional Securities as
to which such election shall have been exercised (to be adjusted by you so as to
eliminate denominations of less than U.S.$1,000).
The Company hereby grants to the Purchasers the right to purchase at
their election up to U.S.$15,000,000 aggregate principal amount of Optional
Securities, at the purchase price set forth in clause (a) of the first paragraph
of this Section 2, for the sole purpose of covering overallotments in the sale
of Firm Securities. Any such election to purchase Optional Securities may be
exercised by written notice from you to the Company, given within a period of 30
calendar days after the date of this Agreement, setting forth the aggregate
principal amount of Optional Securities to be purchased and the date on which
such Optional Securities are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as hereinafter defined) or,
unless you and the Company otherwise agree in writing earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and
-6-
the Offering Circular and each Purchaser hereby represents and warrants to, and
agrees with, the Company that:
(a) It will offer and sell the Securities only to (i) persons who
it reasonably believes are "qualified institutional buyers" ("QIBs")
within the meaning of Rule 144A under the Securities Act in transactions
meeting the requirements of Rule 144A, (ii) institutions which it
reasonably believes are "accredited investors" ("Institutional
Accredited Investors") within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act or (iii) upon the terms and conditions set
forth in Annex I to this Agreement;
(b) It is an Institutional Accredited Investor; and
(c) It will not offer or sell the Securities by any form of
general solicitation or general advertising, including, but not limited
to, the methods described in Rule 502(c) under the Securities Act.
4. (a) Except as set forth in the next paragraph, the Securities to be
purchased by each Purchaser hereunder will be represented by one or more
definitive global Securities in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company ("DTC") or its
designated custodian. The Company will deliver each of the global Securities to
Goldman, Sachs & Co., for the account of each Purchaser, against payment by or
on behalf of such Purchaser of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in Federal
(same day) funds, by causing DTC to credit the Securities to the account of
Goldman, Sachs & Co. at DTC. The time and date of such delivery and payment
shall be, with respect to the Firm Securities, 9:30 a.m., New York City time, on
June 18, 1996, or such other time and date as the Purchaser and the Company may
agree upon in writing and, with respect to the Optional Securities, 9:30 a.m.,
New York City time, on the date specified by the Purchaser in the written notice
given by the Purchaser of the Purchaser's election to purchase such Optional
Securities, or such other time and date as the Purchaser and the Company may
agree upon in writing. Such time and date for delivery of the Firm Securities is
herein called the "First Time of Delivery," such time and date for delivery of
the Optional Securities, if not the First Time of Delivery, is herein called the
"Second Time of Delivery," and each such time and date for delivery is herein
called a "Time of Delivery."
Such Securities, if any, as Goldman, Sachs & Co. may request upon at
least 48 hours' prior notice to the Company (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by or on behalf of the
Company to Goldman, Sachs & Co. for the account of certain of the Purchasers,
against payment by or on behalf of such Purchaser of the purchase price therefor
by certified or official bank check or checks, payable to the order of the
Company in Federal (same day) funds. The Company will cause the certificates
representing the Securities to be made available for checking and packaging at
least 24 hours prior to such Time of Delivery at the office of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004.
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Purchasers pursuant to Section 7(k) hereof, will be delivered at such time and
date at the offices of Pogo Producing Company, #5 Greenway Plaza, Suite 2700,
Houston, Texas 77046 (the "Closing Location"), and the Securities will be
delivered at the offices of Goldman Sachs & Co. referred to in paragraph 4(a)
above, at all such Times of Delivery. A meeting will be held at the Closing
Location at 4:00 p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the
-7-
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you;
to make no amendment or any supplement to the Offering Circular which
shall be disapproved by you promptly after reasonable notice thereof;
and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities and the shares of Stock
issuable upon conversion of the Securities for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) To furnish the Purchasers with five copies of the Offering
Circular and each amendment or supplement thereto signed by an
authorized officer of the Company with the independent accountants'
report(s) in the Offering Circular, and any amendment or supplement
containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional copies thereof in
such quantities as you may from time to time reasonably request, and if,
at any time prior to the earlier of (i) the completion of the
distribution of the Securities or (ii) the expiration of nine months
after the date of the Offering Circular, any event shall have occurred
as a result of which the Offering Circular as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Offering Circular is delivered, not misleading, or,
if for any other reason it shall be necessary or desirable during such
same period to amend or supplement the Offering Circular, to notify you
and upon your request to prepare and furnish without charge to each
Purchaser and to any dealer in securities as many copies as you may from
time to time reasonably request of an amended Offering Circular or a
supplement to the Offering Circular which will correct such statement or
omission or effect such compliance;
(d) (i) During the period beginning from the date hereof and
continuing until the date 90 days after the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder any securities of the Company that are substantially
similar to the Securities or the Stock, including, but not limited to,
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities, except that the Company may, without such consent (A) issue
shares of Common Stock issuable upon conversion of the Notes, (B) issue
shares of Common Stock issuable upon conversion of the 5 1/2%
Convertible Subordinated Notes due 2004 or the 8% Convertible
Subordinated Debentures due 2005, (C) issue shares of Common Stock
issuable pursuant to options or similar rights granted to directors,
officers or employees, (D) issue shares of Common Stock issuable
pursuant to any long-term incentive or employee benefit plan of the
Company, (E) issue shares of Common Stock or preferred stock in
connection with the Company's Stockholder Rights Plan and (F) grant
options or other derivative securities pursuant to existing stock option
plans of the Company; and PROVIDED, THAT, the Company shall not offer,
sell, contract to sell or otherwise dispose of securities of the Company
after such 90 day period if such transaction would cause the initial
offer and sale by the Company and resale by the Purchasers of the
Securities to not be
-8-
exempt from the registration requirements of the Securities Act, and
(ii) that it will use its reasonable efforts to cause each person who
has entered into a Lock-up Agreement (as herein defined) to comply
therewith, will not grant any waivers or consents to noncompliance
therewith and will enforce its rights under each such agreement, in each
case unless and to the extent that it shall have obtained your prior
written consent;
(e) Not to be or become, at any time prior to the expiration of
three years after the Time of Delivery, an open-end investment company,
unit investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act;
(f) At any time prior to three years after the Time of Delivery
when the Company is not subject to Section 13 or 15(d) of the Exchange
Act, for the benefit of holders from time to time of Securities, to
furnish at its expense, upon request, to holders of Securities and the
Stock issuable upon conversion thereof and prospective purchasers of
Securities and the Stock issuable upon conversion thereof information
(the "Additional Issuer Information") satisfying the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act;
(g) To use its reasonable best efforts to cause the Securities
sold in reliance on Rule 144A to be eligible for the PORTAL trading
system of the National Association of Securities Dealers, Inc.;
(h) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the date of the Offering
Circular), consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail;
(i) During a period of five years from the date of the Offering
Circular, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders of the
Company, and to deliver to you (i) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any securities exchange on which the Securities or any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(j) During the period of three years after the latest Time of
Delivery, the Company will not, and will not permit any of its
"affiliates" (as defined in Rule 144 under the Securities Act) to,
resell any of the Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them, except pursuant
to an effective registration statement under the Securities Act;
(k) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Offering Circular under the caption "Use of Proceeds";
(l) To reserve and keep available at all times, free of
preemptive rights, shares of Stock for the purpose of enabling the
Company to satisfy any obligations to issue shares of its Stock upon
conversion of the Securities;
-9-
(m) To use its reasonable best efforts to list, subject to notice
of issuance and on or before the earliest date the Securities become
convertible, the shares of Stock issuable upon conversion of the
Securities on the New York Stock Exchange and the Pacific Stock
Exchange; and
(n) Until such time as any Security or any Stock issuable upon
conversion thereof is registered under the Securities Act (pursuant to
the Registration Rights Agreement or otherwise) and transferred pursuant
to such registration, to include a legend on the Securities and the
Stock issuable upon the conversion thereof to the effect set forth under
"Notice to Investors" in the Offering Circular.
6. The Company covenants and agrees with the several Purchasers that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Securities and the shares of Stock issuable upon conversion of the
Securities and all other expenses in connection with the preparation, printing
and filing of the Offering Circular and any amendments and supplements thereto
and the mailing and delivering of copies thereof to the Purchasers and dealers;
(ii) the cost of reproducing any Agreement among Purchasers, this Agreement, the
Indenture, the Registration Rights Agreement, any Blue Sky Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities and
the shares of Stock issuable upon conversion of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Purchasers in connection with such
qualification and in connection with any Blue Sky Memoranda; (iv) any fees
charged by securities rating services for rating the Securities; (v) the cost of
preparing the Securities; (vi) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities; (vii) the fees and expenses
of Euroclear, CEDEL and any other depositary used in connection with the
Securities or the Stock issuable upon conversion of the Securities; (viii) any
cost incurred in connection with the designation of the Securities for trading
in PORTAL and the listing of the shares of Stock issuable upon conversion of the
Securities; and (ix) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section, including any expenses incurred in connection with Section 5(f)
hereof; and to indemnify and hold harmless the Purchasers from any documentary
stamp or similar issue tax and any related interest or penalties on the issue,
sale or delivery of the Securities to the Purchaser which are or may be due in
the United Kingdom or the United States of America. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Purchasers will pay all of their own costs and expenses, including the fees and
expenses of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder at each Time of Delivery
shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such
Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) Vinson & Elkins L.L.P., counsel for the Purchasers, shall
have furnished to you such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Company, the validity
of the Indenture, the Securities, the shares of Stock issuable upon
conversion of the Securities, the Offering Circular and other related
matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
-10-
(b) Baker & Botts, L.L.P., counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the Offering
Circular;
(ii) The shares of Stock initially issuable upon
conversion of the Securities have been duly and validly
authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Securities and
the Indenture, will be duly and validly issued and fully paid and
nonassessable;
(iii) This Agreement has been duly authorized, executed
and delivered by the Company;
(iv) The Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the global Securities,
the Indenture and the Securities conform, as to legal matters, in
all material respects to the descriptions thereof in the Offering
Circular;
(v) The Indenture has been duly authorized, executed and
delivered by the Company and, when duly authorized, executed and
delivered by the Trustee, will constitute a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(vi) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture,
except such as may be required under the Securities Act in
connection with the shares of Stock issuable upon conversion of
the Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Purchasers;
(vii) The statements in the Offering Circular under the
caption "United States Taxation," insofar as they purport to
describe legal matters, fairly present in all material respects
the matters set forth therein;
(viii) No registration of the Securities under the
Securities Act, and no qualification of an indenture under the
United States Trust Indenture Act of 1939 with respect thereto,
is required for the initial offer and sale by the Company, or the
resale by the Purchasers, of the Securities in the manner
contemplated by this Agreement and the Offering Circular; and
-11-
(ix) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act.
In addition, such opinion shall also contain a statement that
such counsel has participated in conferences with certain officers and
representatives of the Company, counsel to the Purchasers,
representatives of the independent public accountants of the Company,
and representatives of the Purchasers at which the contents of the
Offering Circular and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Offering Circular, on the basis of the foregoing (relying in part
upon the statements of officers and other representatives of the
Company), no facts have come to the attention of such counsel that have
caused it to believe that the Offering Circular, as of its date,
contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need make no comment as to the reserve
information, financial statements and other financial data included in
the Offering Circular; in rendering such opinion, such counsel may (i)
rely in respect to matters of fact upon certificates of officers of the
Company and its subsidiaries and upon information obtained from public
officials, (ii) assume that all documents submitted to such counsel as
originals are authentic, that all copies submitted to such counsel
conform to the originals thereof, and that the signatures on all
documents examined by such counsel are genuine, (iii) state that such
counsel's opinion is limited to (a) federal law and the law of the State
of Texas and, as to matters of corporate governance, the law of the
State of Delaware, and (b) with respect to the opinions regarding
enforceability set forth in paragraphs (iii) and (v), the contract law
of the State of New York, and (iv) may make such other assumptions and
qualifications as may be reasonably acceptable to the Purchasers;
(c) Gerald A. Morton, Associate General Counsel of the Company,
shall have furnished to you his written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the Offering
Circular;
(ii) The Company has an authorized capitalization as set
forth in the Offering Circular, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of
local counsel, provided that such counsel shall state that they
believe that both you and he are justified in relying upon such
opinions);
(iv) Each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of
each
-12-
such Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and nonassessable, and (except for
directors' qualifying shares and except as otherwise set forth in
the Offering Circular) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel, provided
that such counsel shall state that he believes that both you and
he are justified in relying upon such opinions);
(v) To his knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be
disclosed in the Offering Circular other than those disclosed
therein;
(vi) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company, any of its subsidiaries or PGCL is a party or by which
the Company, any of its subsidiaries or PGCL is bound or to which
any of the property or assets of the Company, any of its
subsidiaries or PGCL is subject, nor will such actions result in
any violation of the provisions of the Restated Certificate of
Incorporation or Bylaws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company, any of its Significant
Subsidiaries or PGCL or any of their properties; and
(vii) The Exchange Act Reports (other than the financial
statements and reserve information therein and related schedules,
as to which such counsel need express no opinion), when they were
filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act, and the rules
and regulations of the Commission thereunder; and such counsel
has no reason to believe that any of such documents, when they
were so filed, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading.
In addition, such opinion shall also contain a statement that
such counsel has no reason to believe that the Offering Circular and any
further amendments or supplements thereto made by the Company prior to
such Time of Delivery (other than the financial statements and other
financial and reserve information contained therein, as to which such
counsel need not comment) contained as of its date or contains as of
such Time of Delivery an untrue statement of a material fact or omitted
or omits, as the case may be, to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(d) At 10:00 a.m., New York City time, on the date of this
Agreement and also at such Time of Delivery, Arthur Andersen LLP shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex II hereto and to such other matters as you may
reasonably request;
(e) (i) Neither the Company, any of its subsidiaries nor PGCL
shall have sustained since the date of the latest audited financial
statements included in the Offering
-13-
Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering
Circular, and (ii) since the respective dates as of which information is
given in the Offering Circular there shall not have been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company,
its subsidiaries or PGCL, otherwise than as set forth or contemplated in
the Offering Circular, the effect of which, in any such case described
in clause (i) or (ii), is in the judgment of the Purchasers so material
and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the Securities being issued at such Time
of Delivery on the terms and in the manner contemplated in this
Agreement and in the Offering Circular;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Securities or any other debt
securities of the Company by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities;
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war; or (v) the occurrence of any change in national or international
financial, political or economic conditions or currency rates or
controls, if the effect of any such event specified in clauses (iv) or
(v) above in the judgment of the Purchasers makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Offering
Circular;
(h) The Securities have been designated for trading on PORTAL;
(i) The directors and executive officers of the Company listed in
Schedule II who are holders of outstanding shares of or securities
exercisable or exchangeable for or convertible into shares of capital
stock of the Company shall have entered into a written agreement with
the Company in the form of Exhibit B hereto (each such agreement a
"Lock-up Agreement"), and executed originals of each Lock-up Agreement
shall have been delivered to you; and
(j) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company
reasonably satisfactory to you as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of Delivery,
as to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsection (e) of this Section and as to such other matters
as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Purchaser
against any losses, claims, damages or liabilities, joint or several, to which
such Purchaser may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
-14-
statement of a material fact contained in the Offering Circular, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with investigating
or defending any such action or claim as such expenses are incurred; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Offering Circular or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by any
Purchaser through Goldman, Sachs & Co.
expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Offering Circular, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Offering Circular or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Purchaser through Goldman, Sachs & Co. expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a
-15-
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Purchasers on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Purchasers, in each case as set forth in the Offering Circular. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Purchasers on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Purchasers agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to investors were offered to
investors exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Purchasers' obligations in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Purchaser within the meaning of the Securities Act; and the obligations of
the Purchasers under this Section 8 shall be in addition to any liability which
the respective Purchasers may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within 36 hours after such default by any
Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Offering Circular which in your opinion may
-16-
thereby be made necessary. The term "Purchaser" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Purchaser or Purchasers by you and the Company
as provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Purchaser or Purchasers by you and the Company
as provided in subsection (a) above, the aggregate principal amount of
Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Purchasers to
purchase Securities of a defaulting Purchaser or Purchasers, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company, except for the expenses to be borne by the Company and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Purchasers, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Purchaser except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives, 85 Broad Street, New York,
New York 10004, Attention: Registration Department; and if to the Company shall
be delivered or sent by mail, telex or facsimile transmission to the address of
the Company set forth in the Offering Circular, Attention: Corporate Secretary;
PROVIDED, HOWEVER, that any notice to a Purchaser pursuant to Section 8(c)
hereof shall be delivered or sent
-17-
by mail, telex or facsimile transmission to such Purchaser at its address set
forth in its Purchasers' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchasers, the Company and, to the extent provided in Sections
8 and 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AND THE UNITED STATES OF AMERICA.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
-18-
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
POGO PRODUCING COMPANY
By /s/ JOHN W. ELSENHANS
Name: John W. Elsenhans
Title: Vice President and Treasurer
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: GOLDMAN, SACHS & CO.
/s/ GOLDMAN, SACHS & CO.
(Goldman, Sachs & Co.)
On behalf of each of the Purchasers
-19-
SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES
PURCHASER TO BE PURCHASED
- ------------ ---------------------
Goldman, Sachs & Co.................................... $ 80,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated......................................... 20,000,000
------------
Total................................... $100,000,000
============
-20-
SCHEDULE II
OFFICERS AND DIRECTORS SIGNING LOCK-UP AGREEMENTS
Paul G. Van Wagenen
Kenneth R. Good
Stuart P. Burbach
Jerry A. Cooper
John W. Elsenhans
Harvey L. Gold
Thomas E. Hart
R. Phillip Laney
John O. McCoy, Jr.
J. Donald McGregor
Ronald B. Manning
Sammie M. Shaw
Gerald A. Morton
Tobin Armstrong
Jack S. Blanton
W.M. Brumley, Jr.
John B. Carter, Jr.
William L. Fisher
William E. Gipson
Gerrit W. Gong
J. Stuart Hunt
Frederick A. Klingenstein
Nicholas R. Petry
Jack A. Vickers
-21-
ANNEX I
(1) The Securities and the Stock issuable upon the conversion thereof
have not been and will not be registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S under the Securities Act
or pursuant to an exemption from the registration requirements of the Securities
Act. Each Purchaser represents that it has offered and sold the Securities and
the Stock issuable upon the conversion thereof, and will offer and sell the
Securities and the Stock issuable upon the conversion thereof (i) as part of
their distribution at any time and (ii) otherwise until 40 days after the later
of the commencement of the offering and the latest Time of Delivery, only in
accordance with Rule 903 of Regulation S or Rule 144A under the Securities Act
or pursuant to Paragraph 2 of this Annex I. Accordingly, each Purchaser agrees
that neither it, its affiliates nor any persons acting on its or their behalf
has engaged or will engage in any directed selling efforts with respect to the
Securities or the Stock issuable upon the conversion thereof, and it and they
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser agrees that, at or prior to confirmation of sale of
Securities (other than a sale pursuant to Rule 144A or pursuant to Paragraph 2
of this Annex I), it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the Restricted Period (as defined in the Offering
Circular) a confirmation or notice to substantially the following effect:
"The Securities covered hereby and the Stock issuable upon the
conversion thereof have not been registered under the United States
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered and sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the commencement
of the offering and the closing date, except in either case in
accordance with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meaning given to them by
Regulation S under the Securities Act."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery of
the Securities, except with its affiliates or with the prior written consent of
the Company.
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3(a)(i) or (ii) of the Purchase Agreement without
delivery of the written statement required by paragraph (1) above.
(3) Each Purchaser further represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of the
Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (ii) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (iii) it has only issued or passed on, and will only issue or pass on, in
the United Kingdom, any document received by it in connection with the issuance
of the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act
-22-
1986 (Investment Advertisements) (Exemptions) Order 1995 of Great Britain or is
a person to whom the document may otherwise lawfully be issued or passed on.
(4) Each Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. Each Purchaser agrees not to cause any advertisement of the Securities
to be published in any newspaper or periodical or posted in any public place and
not to issue any circular relating to the Securities, except in any such case
with Goldman, Sachs & Co.'s express written consent and then only at its own
risk and expense.
-23-
ANNEX II
Pursuant to Section 7(d) of the Purchase Agreement, the accountants
shall furnish letters to the Purchasers to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
financial statement schedules audited by them and included in the
Offering Circular comply as to form in all material respects with the
applicable requirements of the Exchange Act and the related published
rules and regulations;
(iii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Offering
Circular agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such
five fiscal years;
(iv) On the basis of limited procedures not constituting an audit
in accordance with generally accepted auditing standards, consisting of
a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included in the Offering Circular,
inquiries of officials of the Company and its subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Offering Circular are not in conformity
with generally accepted accounting principles applied on the
basis substantially consistent with the basis for the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Offering Circular;
(B) any other unaudited income statement data and balance
sheet items included in the Offering Circular do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Offering Circular;
(C) the unaudited financial statements which were not
included in the Offering Circular but from which were derived any
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Offering Circular and referred to in clause
(B) were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements
included in the Offering Circular;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Offering Circular do not
comply as to form in all material respects with
-24-
the applicable accounting requirements or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Offering Circular or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Purchasers, or any increases in any items
specified by the Purchasers, in each case as compared with
amounts shown in the latest balance sheet included in the
Offering Circular except in each case for changes, increases or
decreases which the Offering Circular discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Offering Circular to the specified
date referred to in clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified
by the Purchasers, or any increases in any items specified by the
Purchasers, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Purchasers, except in each case for
decreases or increases which the Offering Circular discloses have
occurred or may occur or which are described in such letter; and
(v) In addition to the examination referred to in their report(s)
included in the Offering Circular and the limited procedures, inspection
of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Purchasers, which
are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Offering Circular, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
-25-
EXHIBIT A
[FORM OF REGISTRATION RIGHTS AGREEMENT]
REGISTRATION RIGHTS AGREEMENT, dated as of June 18, 1996 (this
"Agreement"), by and among Pogo Producing Company, a Delaware corporation (the
"Company"), and Goldman, Sachs & Co. ("GS"), and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated (together, "ML") (GS and ML being
referred to hereinafter collectively as the "Purchasers").
RECITALS
WHEREAS, the Company, GS and ML have entered into a Purchase Agreement,
dated June 11, 1996 (the "Purchase Agreement"), providing for, among other
things, the sale by the Company and the purchase by the Purchasers of an
aggregate of U.S.$100,000,000 principal amount, and, at the election of the
Purchasers, up to an aggregate of U.S.$15,000,000 additional principal amount,
of the Company's 5 1/2% Convertible Subordinated Notes due June 15, 2006,
convertible into shares of Common Stock (as defined herein) of the Company as
provided in the Indenture (as defined herein); and
WHEREAS, this Agreement is being entered into pursuant to the Purchase
Agreement as a condition to the closing of the sale of the Securities (as
defined herein) pursuant thereto;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "CLOSING DATE" shall mean the First Time of Delivery as
defined in the Purchase Agreement.
(b) "COMMISSION" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.
(c) "COMMON STOCK" means the Common Stock, par value $1.00 per
share, of the Company, and any securities of the Company or any
successor which may be issuable upon conversion of the Securities
pursuant to Article Thirteen of the Indenture.
(d) "EFFECTIVE TIME" shall mean the date on which the Commission
declares the Registration Statement effective or on which the
Registration Statement otherwise becomes effective.
(e) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, or any successor thereto, as the same shall be amended from time
to time.
(f) The term "HOLDER" shall mean any person that is the record
owner of Registrable Securities or any person that has a beneficial
interest in a global security representing Registerable Securities.
(g) "INDENTURE" shall mean the Indenture, dated as of June 15,
1996, between the Company and Fleet National Bank, as Trustee, as
amended and supplemented from time to time in accordance with its terms.
A-1
(h) The term "MANAGING UNDERWRITER OR UNDERWRITERS" shall mean
the person or persons selected pursuant to Section 7(a) of this
Agreement to manage an underwritten offering of Registrable Securities.
(i) The term "PERSON" shall have the meaning specified in the
Indenture.
(j) "PROSPECTUS" shall mean the prospectus (including any
preliminary prospectus and any final prospectus) included in any
Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of
the Registrable Securities covered by the Registration Statement and by
all other amendments and supplements to such prospectus, including all
material incorporated by reference in such prospectus and all documents
filed after the date of such prospectus by the Company under the
Exchange Act and incorporated by reference therein.
(k) "REGISTRABLE SECURITIES" shall mean all or any portion of the
Securities issued under the Indenture in registered form and the shares
of Common Stock issuable upon conversion of such Securities; PROVIDED,
HOWEVER, that a security ceases to be a Registrable Security when it is
no longer a Restricted Security.
(l) "REGISTRATION EXPENSES" shall have the meaning assigned
thereto in Section 4 of this Agreement.
(m) "REGISTRATION STATEMENT" shall mean a "shelf" registration
statement filed under the Securities Act providing for the registration
of, and the sale on a continuous or delayed basis by the holders of, all
of the Registrable Securities pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission, filed
by the Company pursuant to the provisions of Section 2 of this
Agreement, including the Prospectus contained therein, any amendments
and supplements to such registration statement, including post-effective
amendments, and all exhibits and all material incorporated by reference
in such registration statement.
(n) "RESTRICTED SECURITY" shall mean any Security or share of
Common Stock issuable upon conversion thereof unless or until (i) it has
been effectively registered under the Securities Act and sold in a
manner contemplated by the Registration Statement, (ii) it has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or (iii) it has otherwise been transferred
and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf
of the Company in accordance with Section 305 of the Indenture.
(o) "RULES AND REGULATIONS" shall mean the published rules and
regulations of the Commission promulgated under the Securities Act or
the Exchange Act, as in effect at any relevant time.
(p) "SECURITY" OR "SECURITIES" shall mean the Company's 5 1/2%
Convertible Subordinated Notes due 2006, to be issued pursuant to the
Indenture and sold pursuant to the Purchase Agreement and any securities
issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
(q) "SECURITIES ACT" shall mean the Securities Act of 1933, or
any successor thereto, as the same shall be amended from time to time.
A-2
(r) "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
(s) The term "UNDERWRITER" shall hereinafter mean any underwriter
of an underwritten offering of Registrable Securities.
(t) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of the Registrable Securities or to
a percentage of Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities which was surrendered
for conversion in order to receive such number of shares of Common
Stock.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) The Company shall, at its expense, within 90 calendar days following
the Closing Date, file with the Commission a Registration Statement with respect
to the Registrable Securities as to which the Company has obtained the
information contemplated by Section 3(d) and thereafter shall use its reasonable
best efforts to cause such Registration Statement to be declared effective by
the Commission under the Securities Act within 180 calendar days after the
Closing Date.
(b) Subject to Section 2(c) hereof, the Company shall use its reasonable
best efforts, and will file such supplements or amendments to the Registration
Statement as may be necessary or appropriate, to keep the Registration Statement
continuously effective under the Securities Act and usable by holders for
resales of Registrable Securities for a period of three years from the Effective
Time or, such shorter period that will terminate upon the earlier of the
following: (i) when there are no outstanding Registrable Securities and (ii)
when, in the written opinion of independent counsel to the Company, all
outstanding Registrable Securities held by persons that are not "affiliates" of
the Company (as defined in Rule 144(a)(1) under the Securities Act) may be
resold without registration under the Securities Act pursuant to Rule 144(k)
under the Securities Act (or any successor provision to such Rule) (and
thereupon the Company shall remove all legends from the Registrable Securities
restricting the transfer thereof (other than any Registrable Securities held by
an affiliate)).
(c) (i) If the Company determines in its good faith judgment that the
filing of the Registration Statement, or of any supplement or amendment
to the Registration Statement to keep such Registration Statement
continuously effective under the Securities Act and usable by holders
for resales of Registrable Securities, would require the disclosure of
material information that the Company has a bona fide business purpose
for preserving as confidential or the disclosure of which would
materially adversely affect the Company's ability to consummate a
significant transaction, upon written notice of such determination by
the Company, the obligation of the Company to file, supplement or amend
the Registration Statement (including any action contemplated by Section
3 hereof) will be suspended until the Company notifies the holders in
writing that the reasons for suspension of such obligations on the part
of the Company as set forth in this Section 2(c)(i) no longer exist;
provided that no such suspension shall last more than 60 consecutive
days.
(ii) If the Company initiates and is in good faith pursuing an
underwritten primary offering of equity securities (as defined in Rule
405 under the Securities Act) (which primary offering may also include
secondary sales of securities of the Company) on a registration
statement (other than any registration by the Company on Form S-8, or a
successor or substantially similar form, of an employee stock option,
stock purchase or compensation plan or of securities issued or issuable
pursuant to any such plan), the obligation of the Company to supplement
or amend the Registration Statement, shall be suspended during the
registration period of such underwritten primary equity offering.
A-3
(d) Notwithstanding the provisions of Section 2(c) hereof, the aggregate
number of days (whether or not consecutive) during which the Company may delay
the filing of any such supplement or amendment shall in no event exceed 90 days
during any period of 12 consecutive months and the right of the Company to
suspend its obligation to supplement or amend the Registration Statement under
Section 2(c) shall not limit any obligation the Company may have to pay
additional interest pursuant to Section 1007 of the Indenture.
3. REGISTRATION PROCEDURES.
(a) Prior to or at the Effective Time the Company shall use its
reasonable best efforts to qualify the Indenture under the Trust Indenture Act;
in connection with such qualification, the Company shall cooperate with the
trustee under the Indenture and the Holders (as defined in the Indenture) to the
effect such changes to the Indenture may be required for such Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act; and the
Company shall execute, and use all reasonable efforts to cause the trustee under
the Indenture to execute, all documents that may be required to effect such
changes and other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner.
(b) In the event that any such amendment or modification referred to in
Section 3(a) hereof involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
Registration Statement, the Company shall use its reasonable best efforts to
effect or cause the Registration Statement to permit the sale of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of distribution thereof described in the Registration Statement;
provided, however, that such method or methods of distribution may take the form
of an underwritten offering of the Registrable Securities only as provided in
Section 7 hereof. In connection therewith, the Company shall, as promptly as
possible:
(i) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, including documents incorporated by
reference in the Registration Statement, offer to provide, and if
requested, furnish to the holders of the Registrable Securities covered
by such Registration Statement and the managing underwriter or
underwriters, if any, of Registrable Securities being sold in an
underwritten offering copies of all such documents proposed to be filed,
together with copies of documents previously filed with the Commission
and proposed to be incorporated by reference in the Registration
Statement, which Registration Statement or Prospectus or any supplement
or amendment thereto (but not any document incorporated by reference
therein) will be subject to the review of such holders and managing
underwriter or underwriters, and the Company will not file the
Registration Statement or any amendment thereto or any Prospectus or any
supplement thereto (including documents filed with the Commission under
the Exchange Act after the initial filing of the Registration Statement
and incorporated by reference in the Registration Statement) to which GS
or ML or, if GS or ML is not a selling holder, the holders of at least
20% in aggregate principal amount of the Registrable Securities covered
by such Registration Statement or the managing underwriter or
underwriters, if any, shall reasonably object; PROVIDED that the Company
may assume, for the purposes of this subparagraph (i), that objections
to the inclusion of information specifically requested to be included in
the Registration Statement or other documents by the staff of the
Commission, or in the opinion of counsel to the Company required to be
in the Registration Statement or other documents, or specifically
required by the Securities Act or the Rules and Regulations, shall not
be deemed to be reasonable;
A-4
(ii) for a reasonable period prior to the filing of the
Registration Statement and throughout the period specified in Section
2(b) hereof, make available for inspection (solely for the purpose of
verifying the accuracy of information contained in the Registration
Statement) by a representative or representatives of GS or ML or, if GS
or ML is not then a holder, the holders of not less than 20% of the
principal amount of the Registrable Securities, any underwriter
participating in any disposition pursuant to a Registration Statement,
and any attorney or accountant retained by GS or ML or such selling
holders or underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and agents, including
independent public accounts and counsel, to supply all information
reasonably requested by any such representative, underwriter, attorney
or accountant in connection with such Registration Statement; PROVIDED
that any records, information or documents that are designated by the
Company in writing as confidential shall be kept confidential by such
persons unless disclosure of such records, information or documents is
required by court or administrative order;
(iii) subject to the provisions of Section 2(c) above, prepare
and file with the Commission such amendments and post-effective
amendments to the Registration Statement, and such supplements to the
Prospectus, as may be required by the Rules and Regulations or the
instructions applicable to the registration form utilized by the Company
or by the Securities Act or otherwise necessary to keep the Registration
Statement effective for the period specified in Section 2(b) and cause
the Prospectus as so supplemented to be filed pursuant to Rule 424 under
the Securities Act; and comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by
such Registration Statement during the period specified in Section 2(b)
in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iv) notify the selling holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly, and confirm such
advice in writing,
(A) when the Registration Statement, any pre-effective
amendment thereto, the Prospectus or any prospectus supplement or
post-effective amendment to the Registration Statement has been
filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any comments by the Commission or the "Blue Sky" or
securities commissioners or regulator of any State with respect
to the Registration Statement, the Prospectus or any prospectus
supplement or any request by the Commission or any securities
commissioner or regulator for amendments or supplements to the
Registration Statement, the Prospectus or any prospectus
supplement or for additional information,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of
the Company contemplated by subparagraph (xiv) below or Section 5
hereof cease to be true and correct,
(E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale under the
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securities or "Blue Sky" laws of any jurisdiction or the
initiation or threatening of any proceeding for such purpose,
and
(F) of the existence of any fact or the happening of any
event during the period (other than any suspension period
referred to in Section 2(c) hereof) during which the Registration
Statement is required hereunder to be effective as a result of
which the Registration Statement, any amendment or post-effective
amendment thereto, the Prospectus, any prospectus supplement, or
any document incorporated therein by reference contain an untrue
statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(v) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at
the earliest possible moment;
(vi) if requested by any managing underwriter or underwriters or
any holder of Registrable Securities being sold pursuant to an
underwritten offering, as soon as practicable incorporate in a
prospectus supplement or post-effective amendment to the Registration
Statement such information as is required by the applicable Rules and
Regulations and as the managing underwriter or underwriters or such
holder specifies should be included therein relating to the terms of the
sale of the Registrable Securities, including, without limitation,
information with respect to the principal amount or number of shares of
Registrable Securities being sold by such holder to any underwriter or
underwriters, the name and description of such holder or underwriter,
the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriter or underwriters
and with respect to any other terms of the underwritten offering
(including whether such underwriting commitment is on a firm commitment
or best efforts basis) of the Registrable Securities to be sold in such
offering; and make all required fillings of such prospectus supplement
or post-effective amendment promptly after being notified of the matters
to be incorporated in such prospectus supplement or post-effective
amendment;
(vii) furnish to each selling holder of Registrable Securities
and each managing underwriter, if any, without charge, an executed copy
of the Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated by
reference therein) and such number of copies of the Registration
Statement (including exhibits thereto and documents incorporated by
reference therein) as such persons may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities;
(viii) deliver to each selling holder of Registrable Securities
and each managing underwriter, if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto, and such other documents, as such persons may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities and to permit any of such persons to
satisfy the prospectus delivery requirements of the Securities Act; the
Company hereby consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable
Securities and by each underwriter thereof, if any, in connection with
the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto; and as promptly as
practicable after the filing with the Commission of any document which
is incorporated by reference in the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto) deliver
a copy of
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such document to each holder of Registerable Securities covered by the
Registration Statement who requests such documents in writing from the
Company;
(ix) prior to any public offering of Registrable Securities, use
reasonable efforts to (A) register or qualify the Registrable Securities
covered by the Registration Statement for offer and sale under the
securities or "Blue Sky" laws of such jurisdictions as any selling
holder or underwriter reasonably shall request, (B) keep such
registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in
such jurisdictions for so long as may be necessary (but not to exceed
three years from the Effective Time) to enable any such holder or
underwriter to complete its distribution of Registrable Securities
pursuant to the Registration Statement and (C) take any and all other
actions as may be reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities;
PROVIDED, HOWEVER, that the Company shall not be required for any such
purpose to qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the requirements
of this Section 3(c)(ix) or consent to general service of process in any
such jurisdiction;
(x) cooperate with the selling holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends and which, if so required by any securities exchange upon which
any Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders; and enable such Registrable Securities to be in such
denominations and registered in such names as the selling holder or the
managing underwriter or underwriters, if any, may request at least two
business days prior to any delivery of Registrable Securities;
(xi) use reasonable efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved
by such other governmental agencies or authorities (federal, state and
local) as may be necessary to enable the seller or sellers thereof or
the underwriter or underwriters, if any, to consummate the disposition
of such Registrable Securities;
(xii) if any fact or event contemplated by subparagraph (iv)(F)
above shall exist or occur, prepare a post-effective amendment or
supplement to the Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other
required document so that the Prospectus, as thereafter delivered to the
purchasers of the Registrable Securities, will not contain an untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(xiii) use reasonable efforts to cause the shares of Common Stock
constituting Registrable Securities covered by the Registration
Statement to qualify for trading on the New York Stock Exchange or, if
the Common Stock is not then traded on the New York Stock Exchange, to
list such shares on each securities exchange on which outstanding Common
Stock of the Company is then listed, if any;
(xiv) enter into such customary agreements (including a customary
underwriting agreement with the underwriter or underwriters, if any,
which shall include only such "lock-up arrangements", if any, as shall
be agreeable to the Company and the underwriter or underwriters) and
take all such other actions reasonably necessary in connection therewith
in order to expedite or facilitate the disposition of any Registrable
Securities and, in such
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connection, whether or not an underwriting agreement is entered into and
whether or not the Registrable Securities are to be sold in an
underwritten offering:
(A) make such representations and warranties to the
holders of such Registrable Securities and the underwriter or
underwriters, if any, in form, substance and scope as are
customarily made in connection with primary underwritten
offerings of equity or convertible debt securities;
(B) cause to be delivered to the sellers of Registrable
Securities and the underwriter or underwriters, if any, opinions
of counsel to the Company, dated the effective date of the
Registration Statement and, in the case of an underwritten
offering, the date of delivery of any Registrable Securities sold
pursuant thereto (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriter or underwriters, if any, and the appointed
representative of or counsel to the holders of at least 50% in
aggregate principal amount of the Registrable Securities being
registered (or, in the case of an underwritten offering, sold),
addressed to each selling holder and each underwriter, if any,
covering the matters customarily covered in opinions requested in
primary underwritten offerings of equity and convertible debt
securities;
(C) cause to be delivered on the effective date of the
Registration Statement, the date of the Prospectus and the
effective date of the most recent post-effective amendment to the
Registration Statement, and at the time of the signing of the
underwriting or purchase agreement and at the time of delivery of
any Registrable Securities sold pursuant thereto, letters from
the Company's independent public accountants addressed to each
selling holder and each underwriter stating that such accountants
are independent public accountants within the meaning of the
Securities Act and the applicable published Rules and Regulations
thereunder, and otherwise in customary form and covering such
financial and accounting matters as are customarily covered by
letters of independent certified public accountants delivered in
connection with primary underwritten public offerings of equity
or convertible debt securities;
(D) if an underwriting agreement is entered into, cause
the same to set forth in full the indemnification provisions and
procedures of Section 6 hereof (or such other provisions and
procedures satisfactory to the managing underwriter or
underwriters and the Company) with respect to all parties to be
indemnified pursuant to said Section;
(E) deliver such documents and certificates as may be
reasonably requested by any holder of Registrable Securities
being sold or the managing underwriter or underwriters, if any,
to evidence the accuracy of the representations contemplated by
clause (A) above and compliance with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company in connection with such offering.
(xv) otherwise use its reasonable best efforts to comply with all
applicable Rules and Regulations, and make generally available to its
security holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act no later than 45 days after the end
of any 12-month period (or 90 days, if such period is a fiscal year) (A)
commencing at the end of any fiscal quarter in which the Registrable
Securities are sold in an underwritten offering, or, if not sold in such
an offering, (B) commencing with the first month of the
A-8
Company's first fiscal quarter commencing after the effective date of
the Registration Statement, which statements shall cover said 12-month
periods;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by the Company to amend or waive any provision of this
Agreement pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the case may be; and
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall be an "Affiliate" (as defined in Schedule E to the
By-Laws of the National Association of Securities Dealers, Inc.
("NASD")) of the Company or has a "Conflict of Interest" (as defined in
such Schedule) and such broker-dealer shall underwrite, participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of such Schedule) of any Registrable
Securities, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Schedule, including, without limitation, by (A)
engaging a "qualified independent underwriter" (as defined in such
Schedule) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and to recommend the
public offering price of such Registrable Securities, (B) indemnifying
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof, and (C)
providing such information within the possession of the Company to such
broker-dealer as may be reasonably required in order for such
broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD.
(d) The Company may require each selling holder of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such holder, the Registrable Securities held
by such holder, and the distribution of such Registrable Securities as the
Company may from time to time request in writing, but only to the extent that
such information shall be required by law or by the Commission in connection
with any registration. Each such holder agrees, by the acquisition of
Registrable Securities, to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such holder to the
Company or of the occurrence of any event in either case as a result of which
any Prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such holder or such holder's intended
method of distribution of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities necessary to make the statements
therein, in light of the circumstances then existing, not misleading and
promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that such
Prospectus shall not contain, with respect to such holder or the distribution of
such Registrable Securities, an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances then existing, not misleading.
(e) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(c)(iv)(F) hereof or of
the commencement of any suspension period referred to in Section 2(c)(i) hereof,
such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement until such holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(c)(xii)
hereof, or until it is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by the Company, such holder will deliver to the Company (at the
Company's expense)
A-9
all copies, other than permanent file copies, then in such holder's possession
of the Prospectus covering such Registrable Securities at the time of receipt of
such notice.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including, without limitation, (a) all
Commission and any NASD registration and filing fees and expenses, (b) all fees
and expenses in connection with the registration or qualification of the
Registrable Securities for offering and sale under the State securities and blue
sky laws referred to in Section 3(c)(ix) hereof and determines their eligibility
for investment under the laws of such jurisdiction as the managing underwriter
or underwriters, if any, or the holders of such Registrable Securities may
designate, including reasonable fees and disbursements, if any, of counsel for
the selling holders or underwriters in connection with such registrations or
qualifications and determinations, (c) all expenses relating to the preparation,
printing, distribution and reproduction of the Registration Statement required
to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Registrable Securities for delivery and the expenses
of reproducing any underwriting agreement(s), agreement(s) among underwriters
and "Blue Sky" or legal investment memoranda, any selling agreements and all
other documents in connection with the offering, sale or delivery of Registrable
Securities to be disposed of, (d) fees and expenses of any Trustee under the
Indenture, any Transfer Agent and Registrar with respect to the Registrable
Securities and any escrow agent or custodian, (e) internal expenses of the
Company (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), (f)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(g) fees, disbursements and expenses of one counsel for the holders of
Registrable Securities retained in connection with such registration, as
selected by the holders of at least 50% in aggregate principal amount of the
outstanding Registrable Securities being registered, (h) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration, (i) disbursements of any managing
underwriter or underwriters in connection with the offering and sale of
Registrable Securities under the Registration Statement (excluding commissions
or fees of underwriters, selling brokers, dealer managers or similar securities
industry professionals) and (j) all fees and expenses incurred in connection
with the qualification of the shares of Common Stock constituting Registrable
Securities for trading on the New York Stock Exchange, or the listing of such
shares on any securities exchange, pursuant to Section 3(c)(xiii) (collectively,
the "Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities or any
underwriter thereof, the Company shall reimburse such person for the full amount
of the Registration Expenses so incurred, assumed or paid promptly after receipt
of a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above, and all fees,
disbursements and expenses of any "qualified independent underwriters" engaged
pursuant to Section 3(c)(xvii).
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5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, the Purchasers
and each of the holders from time to time of Registrable Securities that:
(a) Each Registration Statement and each Prospectus contained
therein or furnished pursuant to Sections 3(c)(vii) and 3(c)(viii)
hereof and any further amendments or supplements to any such
Registration Statement or Prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been
given to holders of Registrable Securities pursuant to Section
3(c)(iv)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(c)(xii) hereof,
the Registration Statement, and the Prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c)(vii)
or 3(c)(viii) hereof, as then amended or supplemented, will conform in
all material respects to the requirements of the Securities Act and will
not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances then existing, not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an underwriter in connection with
an offering or by a holder of Registrable Securities expressly for use
therein.
(b) Any documents incorporated by reference in any Prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will
conform or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material
fact or will omit or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(c) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any subsidiary thereof is a party or by which
the Company or any subsidiary thereof is bound or to which any of the
property or assets of the Company or any subsidiary thereof is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation, as amended and restated, or the Bylaws, as
amended, of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any subsidiary thereof or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Securities Act of the
Registrable Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or "Blue Sky" laws or foreign laws in connection with the
offering and distribution of the Registrable Securities.
A-11
(d) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly authorized, executed and
delivered by the other parties hereto, will constitute a valid and
legally binding obligation of the Company enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Purchasers contained herein and in the Purchase Agreement, and
as an inducement to the Purchasers to enter into such Agreements, the Company
shall, and it hereby agrees to, indemnify and hold harmless each of the holders
of Registrable Securities to be included in such registration, each underwriter,
selling agent or placement agent with respect to the Registrable Securities and
each of their respective officers, directors, employees and agents and each
person who controls such holder or underwriter, selling agent or placement agent
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes referred to as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or several,
to which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Securities were registered under the Securities
Act, or any Prospectus contained therein or furnished by the Company to any
Indemnified Person, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company shall, and it hereby agrees to, reimburse such
Indemnified Person for any reasonable legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim; PROVIDED, HOWEVER, that the Company shall not be liable to any such
Indemnified Person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement or Prospectus, or amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Indemnified Person expressly for use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS. The
Company may require, as a condition to including any Registrable Securities in
any Registration Statement filed pursuant to this Agreement and to entering into
any underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from the holder of such
Registrable Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless the
Company, its directors, officers who sign any Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or such other persons may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, or any Prospectus contained
therein or furnished by the Company to any such holder or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished in writing to the Company by or
on behalf of such holder or underwriter
A-12
expressly for use therein, and (ii) reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim;
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) CONTRIBUTION. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The holders'
and any underwriters' obligations in this Section 6(d) to contribute shall be
several in proportion to the percentage of principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
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(e) Notwithstanding any other provision of this Section 6, in no event
will any (i) holder be required to undertake liability to any person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds to be
received by such holder from the sale of such holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to such registration and (ii) underwriter be required to undertake
liability to any person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter with respect to the
Registrable Securities underwritten by it and distributed to the public pursuant
to any such underwriting agreement.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person, including any liability of the Company to the Purchasers
pursuant to Section 8 of the Purchase Agreement.
7. UNDERWRITTEN OFFERINGS.
(a) RIGHT TO EFFECT UNDERWRITTEN OFFERING. The holders of Registrable
Securities covered by the Registration Statement may sell such Registrable
Securities in an underwritten offering, provided that the holders of at least
20% in aggregate principal amount of the Registrable Securities initially
outstanding elect to participate in such an offering and except that any such
underwritten offering shall be suspended during the period specified in Section
2(c)(ii) and 2(d) hereof.
(b) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Registration Statement are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least 50% in aggregate principal amount of the outstanding
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(c) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with the Company and each other such holder that no such holder
may participate in any underwritten offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under Sections
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
under the Securities Act) and the Rules and Regulations, and shall take such
further action as shall be necessary to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company shall deliver to such holder a written statement as to
whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement grant registration rights with respect to Registrable
Securities or any other securities, or enter into any agreement with respect to
its securities, which prevents the exercise of or otherwise
A-14
conflicts with the provisions hereof. The Company is not currently a party to
any agreement with respect to any of its equity or debt securities granting any
registration rights to any person.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there may
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be given in the manner provided for in the
Indenture.
(d) PARTIES IN INTEREST. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto. In the event that
any transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement. If the
Company shall so request, any such successor, assign or transferee shall agree
in writing to acquire and hold the Registrable Securities subject to all of the
terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) AMENDMENTS AND WAIVERS. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the holders of at least 662/3% of
the principal amount of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 9(h),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available upon reasonable prior written
notice for inspection and copying on any business day by any
A-15
holder of Registrable Securities at the offices of the Company at the address
set forth in the Indenture.
(j) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
A-16
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
POGO PRODUCING COMPANY
By:_________________________________
Name:
Title:
GOLDMAN, SACHS & CO.
------------------------------------
(Goldman, Sachs & Co.)
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By:_________________________________
Name:
Title:
A-17
EXHIBIT 5
[Pogo Producing Company Letterhead]
September 13, 1996
Pogo Producing Company
5 Greenway Plaza, Suite 2700
Houston, Texas 77046
Ladies and Gentlemen:
As set forth in the Registration Statement on Form S-3 ("Registration
Statement"), filed by Pogo Producing Company, a Delaware corporation (the
"Company"), under the Securities Act of 1933, as amended (the "Act"), relating
to $115,000,000 aggregate principal amount of 5-1/2% Convertible Subordinated
Notes due 2006 of the Company (the "Notes") and to the shares of Common Stock,
par value $1 per share, of the Company issuable upon conversion of the Notes
(the "Common Shares"), certain legal matters in connection with the Notes are
being passed upon by me. The Notes were issued under an indenture (the
"Indenture") between the Company and Fleet National Bank, as trustee (the
"Trustee"). At your request, this opinion is being furnished to you for filing
as Exhibit 5 to the Registration Statement.
I am Corporate Secretary and Associate General Counsel of the Company
and have acted as counsel for the Company in connection with the registration
and sale of the Notes. In such capacity, I have examined the Company's Restated
Certificate of Incorporation and Bylaws, each as amended to date, and have
examined the originals, or copies certified or otherwise identified, of
corporate records of the Company, certificates of public officials and of
representatives of the Company, statutes and other records, instruments and
documents as a basis for the opinions hereinafter expressed.
Based upon my examination as aforesaid, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, I am of the opinion
that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware.
2. The Indenture constitutes a legal, valid and binding instrument of
the Company, enforceable against the Company in accordance with its terms.
<PAGE>
3. The Notes constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, and the
Common Shares, when duly issued upon conversion of the Notes in accordance with
the terms thereof, will be validly issued, fully paid and non-assessable.
The opinions as to enforceability of obligations set forth in paragraphs
2 and 3 above are each subject to the effect on such enforceability of (i)
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting creditors' rights and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters."
Very truly yours,
/s/ GERALD A. MORTON
EXHIBIT 12
POGO PRODUCING COMPANY & SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX
MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, -----------------------------------------------------
1996 1995 1994 1993 1992 1991
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS:
Income before taxes and extraordinary
item............................... $ 22,996 $ 14,121 $ 42,891 $ 40,042 $ 28,687 $ 14,616
Add --
Fixed charges................. 6,324 11,454 10,377 11,245 19,305 25,302
Less --
Capitalized interest....... (1,830) (1,834) (739) (451) (391) (637)
--------- --------- --------- --------- --------- ---------
Total earnings.......... $ 27,490 $ 23,741 $ 52,529 $ 50,836 $ 47,601 $ 39,281
========= ========= ========= ========= ========= =========
FIXED CHARGES:
Interest expense..................... $ 6,184 $ 11,167 $ 10,104 $ 10,956 $ 19,036 $ 24,946
Portion of rental expense
representing interest.............. 140 287 273 289 269 356
--------- --------- --------- --------- --------- ---------
Total fixed charges..... $ 6,324 $ 11,454 $ 10,377 $ 11,245 $ 19,305 $ 25,302
========= ========= ========= ========= ========= =========
RATIO OF EARNINGS TO FIXED CHARGES... 4.4 2.1 5.1 4.5 2.5 1.6
========= ========= ========= ========= ========= =========
</TABLE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 1, 1996
included in Pogo Producing Company's Form 10-K for the year ended December 31,
1995 and to all references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
September 13, 1996
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
We hereby consent to the use of our name in the Pogo Producing Company
Registration Statement on Form S-3, initially filed in September, 1996 as
amended, as referenced therein under the heading "Experts". We further consent
to the incorporation by reference of our estimates of reserve and present value
of future net reserves in such Registration Statement.
/s/ RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
Houston, Texas
September 13, 1996
EXHIBIT 24
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I Tobin Armstrong, in my capacity as a director
of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W. ELSENHANS and
THOMAS E. HART, and each of them severally, my true and lawful attorney or
attorneys with power to act with or without the others, and with full power of
substitution and resubstitution, to execute in my name, place and stead in my
capacity as a director of the Company, said Registration Statement, any and all
amendments to said Registration Statement and all instruments as said attorneys
or any of them shall deem necessary or incidental in connection therewith and to
file the same with the Commission. Each of said attorneys shall have full power
and authority to do and perform in my name and on my behalf in my capacity as a
director any act whatsoever that is necessary or desirable to be done in the
premises as fully and to all intents and purposes as I might or could do in
person, and by my signature hereto, I hereby ratify and approve all of such acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ TOBIN ARMSTRONG
Tobin Armstrong
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I Jack S. Blanton, in my capacity as a director
of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W. ELSENHANS, and
THOMAS E. HART, and each of them severally, my true and lawful attorney or
attorneys with power to act with or without the others, and with full power of
substitution and resubstitution, to execute in my name, place and stead in my
capacity as a director of the Company, said Registration Statement, any and all
amendments to said Registration Statement and all instruments as said attorneys
or any of them shall deem necessary or incidental in connection therewith and to
file the same with the Commission. Each of said attorneys shall have full power
and authority to do and perform in my name and on my behalf in my capacity as a
director any act whatsoever that is necessary or desirable to be done in the
premises as fully and to all intents and purposes as I might or could do in
person, and by my signature hereto, I hereby ratify and approve all of such acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ JACK S. BLANTON
Jack S. Blanton
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I W. M. Brumley, Jr., in my capacity as a
director of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W.
ELSENHANS and THOMAS E. HART, and each of them severally, my true and lawful
attorney or attorneys with power to act with or without the others, and with
full power of substitution and resubstitution, to execute in my name, place and
stead in my capacity as a director of the Company, said Registration Statement,
any and all amendments to said Registration Statement and all instruments as
said attorneys or any of them shall deem necessary or incidental in connection
therewith and to file the same with the Commission. Each of said attorneys shall
have full power and authority to do and perform in my name and on my behalf in
my capacity as a director any act whatsoever that is necessary or desirable to
be done in the premises as fully and to all intents and purposes as I might or
could do in person, and by my signature hereto, I hereby ratify and approve all
of such acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ W.M. BRUMLEY, JR.
W.M. Brumley, Jr.
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I John B. Carter, Jr., in my capacity as a
director of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W.
ELSENHANS and THOMAS E. HART, and each of them severally, my true and lawful
attorney or attorneys with power to act with or without the others, and with
full power of substitution and resubstitution, to execute in my name, place and
stead in my capacity as a director of the Company, said Registration Statement,
any and all amendments to said Registration Statement and all instruments as
said attorneys or any of them shall deem necessary or incidental in connection
therewith and to file the same with the Commission. Each of said attorneys shall
have full power and authority to do and perform in my name and on my behalf in
my capacity as a director any act whatsoever that is necessary or desirable to
be done in the premises as fully and to all intents and purposes as I might or
could do in person, and by my signature hereto, I hereby ratify and approve all
of such acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ JOHN B. CARTER, JR.
John B. Carter, Jr.
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I William L. Fisher, in my capacity as a director
of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W. ELSENHANS and
THOMAS E. HART, and each of them severally, my true and lawful attorney or
attorneys with power to act with or without the others, and with full power of
substitution and resubstitution, to execute in my name, place and stead in my
capacity as a director of the Company, said Registration Statement, any and all
amendments to said Registration Statement and all instruments as said attorneys
or any of them shall deem necessary or incidental in connection therewith and to
file the same with the Commission. Each of said attorneys shall have full power
and authority to do and perform in my name and on my behalf in my capacity as a
director any act whatsoever that is necessary or desirable to be done in the
premises as fully and to all intents and purposes as I might or could do in
person, and by my signature hereto, I hereby ratify and approve all of such acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ WILLIAM L. FISHER
William L. Fisher
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I William E. Gipson, in my capacity as a director
of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W. ELSENHANS and
THOMAS E. HART, and each of them severally, my true and lawful attorney or
attorneys with power to act with or without the others, and with full power of
substitution and resubstitution, to execute in my name, place and stead in my
capacity as a director of the Company, said Registration Statement, any and all
amendments to said Registration Statement and all instruments as said attorneys
or any of them shall deem necessary or incidental in connection therewith and to
file the same with the Commission. Each of said attorneys shall have full power
and authority to do and perform in my name and on my behalf in my capacity as a
director any act whatsoever that is necessary or desirable to be done in the
premises as fully and to all intents and purposes as I might or could do in
person, and by my signature hereto, I hereby ratify and approve all of such acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ WILLAM E. GIPSON
William E. Gipson
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I Gerrit W. Gong, in my capacity as a director of
the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W. ELSENHANS and THOMAS
E. HART, and each of them severally, my true and lawful attorney or attorneys
with power to act with or without the others, and with full power of
substitution and resubstitution, to execute in my name, place and stead in my
capacity as a director of the Company, said Registration Statement, any and all
amendments to said Registration Statement and all instruments as said attorneys
or any of them shall deem necessary or incidental in connection therewith and to
file the same with the Commission. Each of said attorneys shall have full power
and authority to do and perform in my name and on my behalf in my capacity as a
director any act whatsoever that is necessary or desirable to be done in the
premises as fully and to all intents and purposes as I might or could do in
person, and by my signature hereto, I hereby ratify and approve all of such acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ GERRIT W. GONG
Gerrit W. Gong
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I J. Stuart Hunt, in my capacity as a director of
the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W. ELSENHANS and THOMAS
E. HART, and each of them severally, my true and lawful attorney or attorneys
with power to act with or without the others, and with full power of
substitution and resubstitution, to execute in my name, place and stead in my
capacity as a director of the Company, said Registration Statement, any and all
amendments to said Registration Statement and all instruments as said attorneys
or any of them shall deem necessary or incidental in connection therewith and to
file the same with the Commission. Each of said attorneys shall have full power
and authority to do and perform in my name and on my behalf in my capacity as a
director any act whatsoever that is necessary or desirable to be done in the
premises as fully and to all intents and purposes as I might or could do in
person, and by my signature hereto, I hereby ratify and approve all of such acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ J. STUART HUNT
J. Stuart Hunt
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I Frederick A. Klingenstein, in my capacity as a
director of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W.
ELSENHANS, and THOMAS E. HART, and each of them severally, my true and lawful
attorney or attorneys with power to act with or without the others, and with
full power of substitution and resubstitution, to execute in my name, place and
stead in my capacity as a director of the Company, said Registration Statement,
any and all amendments to said Registration Statement and all instruments as
said attorneys or any of them shall deem necessary or incidental in connection
therewith and to file the same with the Commission. Each of said attorneys shall
have full power and authority to do and perform in my name and on my behalf in
my capacity as a director any act whatsoever that is necessary or desirable to
be done in the premises as fully and to all intents and purposes as I might or
could do in person, and by my signature hereto, I hereby ratify and approve all
of such acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ FREDERICK A. KLINGENSTEIN
Frederick A. Klingenstein
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I Nicholas R. Petry, in my capacity as a director
of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W. ELSENHANS and
THOMAS E. HART, and each of them severally, my true and lawful attorney or
attorneys with power to act with or without the others, and with full power of
substitution and resubstitution, to execute in my name, place and stead in my
capacity as a director of the Company, said Registration Statement, any and all
amendments to said Registration Statement and all instruments as said attorneys
or any of them shall deem necessary or incidental in connection therewith and to
file the same with the Commission. Each of said attorneys shall have full power
and authority to do and perform in my name and on my behalf in my capacity as a
director any act whatsoever that is necessary or desirable to be done in the
premises as fully and to all intents and purposes as I might or could do in
person, and by my signature hereto, I hereby ratify and approve all of such acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ NICHOLAS R. PETRY
Nicholas R. Petry
<PAGE>
POWER OF ATTORNEY
WHEREAS, POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3 (the "Registration Statement") in order to
register certain securities pursuant to the Act as have been approved by the
Board of Directors pursuant to resolutions adopted thereby, and also to file any
and all exhibits and other documents relating to said Registration Statement
that are necessary or advisable;
NOW, THEREFORE, I Jack A. Vickers, in my capacity as a director
of the Company, do hereby appoint PAUL G. VAN WAGENEN, JOHN W. ELSENHANS and
THOMAS E. HART, and each of them severally, my true and lawful attorney or
attorneys with power to act with or without the others, and with full power of
substitution and resubstitution, to execute in my name, place and stead in my
capacity as a director of the Company, said Registration Statement, any and all
amendments to said Registration Statement and all instruments as said attorneys
or any of them shall deem necessary or incidental in connection therewith and to
file the same with the Commission. Each of said attorneys shall have full power
and authority to do and perform in my name and on my behalf in my capacity as a
director any act whatsoever that is necessary or desirable to be done in the
premises as fully and to all intents and purposes as I might or could do in
person, and by my signature hereto, I hereby ratify and approve all of such acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument
on this 13th day of September, 1996.
/s/ JACK A. VICKERS
Jack A. Vickers
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM T-1
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STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
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/ / CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
FLEET NATIONAL BANK
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(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
Not applicable 04-317415
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(State of incorporation (I.R.S. Employer
if not a national bank) Identification No.)
One Monarch Place, Springfield, MA 01102
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(Address of principal executive offices) (Zip Code)
</TABLE>
Pat Beaudry, 777 Main Street, Hartford, CT 06115 (203) 728-2065
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(Name, address and telephone number of agent for service)
Pogo Producing Company
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(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Delaware 74-1659398
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5 Greenway Plaza
Houston, TX 77046
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(Address of principal executive offices) (Zip Code)
</TABLE>
5-1/2% Convertible Subordinated Notes due 2006
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(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject,
The Comptroller of the Currency,
Washington, D.C.
Federal Reserve Bank of Boston
Boston, Massachusetts
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise
corporate trust powers:
The trustee is so authorized.
Item 2. Affiliations with obligor and underwriter. If the obligor or
any underwriter for the obligor is an affiliate of the trustee,
describe each such affiliation.
None with respect to the trustee.
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement of
eligibility and qualification.
(1) A copy of the Articles of Association of the trustee as
now in effect.
(2) A copy of the Certificate of Authority of the trustee
to do business.
(3) A copy of the Certification of Fiduciary Powers of the
trustee.
(4) A copy of the By-Laws of the trustee as now in effect.
(5) Consent of the trustee required by Section 321(b)
of the Act.
(6) A copy of the latest Consolidated Reports of Condition
and Income of the trustee published pursuant to law or
the requirements of its supervising or examining authority.
NOTES
In as much as this Form T-1 is filed prior to the ascertainment by the trustee
of all facts on which to base answers to Item 2, the answers to said Items are
based upon imcomplete information. Said Items may, however, be considered
correct unless amended by an amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Fleet National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this statement of
of eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Hartford, and State of
Connecticut, on the 15th day of July, 1996.
FLEET NATIONAL BANK,
AS TRUSTEE
By: /s/Philip G. Kane Jr.
-------------------------
Its Vice President
<PAGE>
EXHIBIT 1
ARTICLES OF ASSOCIATION
OF
FLEET NATIONAL BANK
FIRST. The title of this Association, which shall carry on the business of
banking under the laws of the United States, shall be "Fleet National Bank."
SECOND. The main office of the Association shall be in Springfield, Hampden
County Commonwealth of Massachusetts. The general business of the Association
shall be conducted at its main office and its branches.
THIRD. The board of directors of this Association shall consist of not less
than five (5) nor more than twenty-five (25) shareholders, the exact number of
directors within such minimum and maximum limits to be fixed and determined
from time to time by resolution of a majority of the full board of directors or
by resolution of the shareholders at any annual or special meeting thereof.
Unless otherwise provided by the laws of the United States, any vacancy in the
board of directors for any reason, including an increase in the number thereof,
may be filled by action of the board of directors.
FOURTH. The annual meeting of the shareholders for the election of directors
and the transaction of whatever other business may be brought before said
meeting shall be held at the main office or such other place as the board of
directors may designate, on the day of each year specified therefore in the
bylaws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all elections shall be
held according to such lawful regulations as may be prescribed by the board of
directors.
FIFTH. The authorized amount of capital stock of this Association shall be
eight million five hundred thousand (8,500,000) shares of which three million
five hundred thousand (3,500,000) shares shall be common stock with a
par value of six and 25/100 dollars ($6.25) each, and of which five million
(5,000,000) shares without par value shall be preferred stock. The capital
stock may be increased or decreased from time to time, in accordance with
the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the board
of directors, in its discretion, may from time to time determine and at such
price as the board of directors may from time to time fix.
<PAGE>
The board of directors of the Association is authorized, subject to limitations
prescribed by law and the provisions of this Article, to provide for the
issuance from time to time in one or more series of any number of the preferred
shares, and to establish the number of shares be included in each series, and
to fix the designation, relative rights, preferences, qualifications and
limitations of the shares of each such series. The authority of the board of
directors with respect to each series shall include, but not be limited to,
determination of the following:
a. The number of shares constituting that series and the distinctive
designation of that series;
b. The dividend rate on the shares of that series, whether dividends shall be
cumulative, and, if so, from which date or dates, and whether they shall be
payable in preference to, or in another relation to, the dividends payable
to any other class or classes or series of stock;
c. Whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
d. Whether that series shall have conversion or exchange privileges, and,
if so, the terms and conditions of such conversion or exchange, including
provision for the adjustment of the conversion or exchange rate in such
events as the board of directors shall determine;
e. Whether or not the shares of that series shall be redeemable, and, if so,
the terms and conditions of such redemption, including the manner of
selecting shares for redemption if less than all shares are to be redeemed,
the date or dates upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
f. Whether that series shall be entitled to the benefit of a sinking fund to
be applied to the purchase or redemption of shares of that series, and, if
so, the terms and amounts of such sinking fund;
g. The right of the shares of that series to the benefit of conditions and
restrictions upon the creation of indebtedness of the Association or any
subsidiary, upon the issue of any additional stock (including additional
shares of such series or of any other series) and upon the payment of
dividends or the making of other distributions on, and the purchase,
redemption or other acquisition by the Association or any subsidiary of
any outstanding stock of the Association;
h. The right of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Association and
whether such rights shall be in preference to, or in another relation to,
the comparable rights of any other class or classes or series of stock; and
i. Any other relative, participating, optional or other special rights,
qualifications, limitations or restrictions of that series.
Shares of any series of preferred stock which have been redeemed (whether
through the operation of a sinking fund or otherwise) or which, if convertible
or exchangeable, have been converted into or exchanged for shares of stock of
any other class or classes shall have the status of authorized and unissued
shares of preferred stock of the same series and may be reissued as a part of
the series of which they were originally a part or may be reclassified and
reissued as part of a new series of preferred stock to be created by resolution
or resolutions of the board of directors or as part of any other series or
preferred stock, all subject to the conditions and the restrictions adopted by
the board of directors providing for the issue of any series of preferred
stock and by the provisions of any applicable law.
Subject to the provisions of any applicable law, or except as otherwise
provided by the resolution or resolutions providing for the issue of any series
of preferred stock, the holders of outstanding shares of common stock shall
exclusively possess voting power for the election of directors and for all
purposes, each holder of record of shares of common stock being entitled to one
vote for each share of common stock standing in his name on the books of the
Association.
Except as otherwise provided by the resolution or resolutions providing for the
issue of any series of preferred stock, after payment shall have been made to
the holders of preferred stock of the full amount of dividends to which they
shall be entitled pursuant to the resolution or resolutions providing for the
issue of any other series of preferred stock, the holders of common stock shall
be entitled, to the exclusion of the holders of preferred stock of any and all
series, to receive such dividends as from time to time may be declared by the
board of directors.
Except as otherwise provided by the resolution or resolutions for the issue
of any series of preferred stock, in the event of any liquidation, dissolution
or winding up of the Association, whether voluntary or involuntary, after
payment shall have been made to the holders of preferred stock of the full
amount to which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of preferred stock the
holders of common stock shall be entitled, to the exclusion of the holders of
preferred stock of any and all series, to share, ratable according to the
number of shares of common stock held by them, in all remaining assets of the
Association available for distribution to its shareholders.
The number of authorized shares of any class may be increased or decreased by
the affirmative vote of the holders of a majority of the stock of the
Association entitled to vote.
<PAGE>
SIXTH. The board of directors shall appoint one of its members president of
this Association, who shall be chairman of the board, unless the board appoints
another director to be the chairman. The board of directors shall have the
power to appoint one or more vice presidents; and to appoint a secretary and
such other officers and employees as may be required to transact the business
of this Association.
The board of directors shall have the power to define the duties of the
officers and employees of the Association; to fix the salaries to be paid to
them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage and administer the business and affairs of
the Association; to make all bylaws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for a board of
directors to do and perform.
SEVENTH. The board of directors shall have the power to change the location of
the main office to any other place within the limits of the City of Hartford,
Connecticut, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency; and shall have the power to
establish or change the location of any branch or branches of the Association
to any other location, without the approval of the shareholders but subject to
the approval of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH. The board of directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than ten percent (10%) of the
stock of this Association, may call a special meeting of shareholders at any
time. Unless otherwise provided by the laws of the United States, a notice of
the time, place and purpose of every annual and special meeting of the
shareholders shall be given by first class mail, postage prepaid, mailed at
least ten (10) days prior to the date of such meeting to each shareholder of
record at his address as shown upon the books of this Association.
TENTH. (a) Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she is or was a director, officer or employee of the Association or is or was
serving at the request of the Association as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust, or other enterprise, including service with respect
to an employee benefit plan, shall be indemnified and held harmless by the
Association to the fullest extent authorized by the law of the state in which
the Association's ultimate parent company is incorporated, except as provided
in subsection (b). The aforesaid indemnity shall protect the indemnified
person against all expense, liability and loss (including attorney's fees,
judgements, fines ERISA excise taxes or penalties, and amounts paid in
settlement) reasonably incurred by such person in connection with such a
proceeding. Such indemnification shall continue as to a person who has ceased
to be a director, officer or employee and shall inure to the benefit of his or
her heirs, executors, and administrators, but shall only cover such person's
period of service with the Association. The Association may, by action of its
Board of Directors, grant rights to indemnification to agents of the
Association and to any director, officer, employee or agent of any of its
subsidiaries with the same scope and effect as the foregoing indemnification
of directors and officers.
(b) Restrictions on Indemnification. Notwithstanding the foregoing, (i) no
person shall be indemnified hereunder by the Association against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by a federal bank regulatory agency which proceeding or action
results in a final order assessing civil money penalties against that person,
requiring affirmative action by that person in the form of payments to the
Association, or removing or prohibiting that person from service with the
Association, and any advancement of expenses to that person in that proceeding
must be repaid; and (ii) no person shall be indemnified hereunder by the
Association and no advancement of expenses shall be made to any person
hereunder to the extent such indemnification or advancement of expenses would
violate or conflict with any applicable federal statute now or hereafter in
force or any applicable final regulation or interpretation now or hereafter
adopted by the Office of the Comptroller of the Currency ("OCC") or the Federal
Deposit Insurance Corporation ("FDIC"). The Association shall comply with any
requirements imposed on it by any such statue or regulation in connection with
any indemnification or advancement of expenses hereunder by the Association.
With respect to proceedings to enforce a claimant's rights to indemnification,
the Association shall indemnify any such claimant in connection with such a
proceeding only as provided in subsection (d) hereof.
(c) Advancement of Expenses. The conditional right to indemnification
conferred in this section shall be a contract right and shall include the
right to be paid by the Association the reasonable expenses (including
attorney's fees) incurred in defending a proceeding in advance of its final
disposition (an "advancement of expenses"); provided, however, that an
advancement of expenses shall be made only upon (i) delivery to the Association
of a binding written undertaking by or on behalf of the person receiving the
advancement to repay all amounts so advanced if it is ultimately determined
that such person is not entitled to be indemnified in such proceeding,
including if such proceeding results in a final order assessing civil money
penalties against that person, requiring affirmative action by that person
in the form of payments to the Association, or removing or prohibiting that
person from service with the Association, and (ii) compliance with any other
actions or determinations required by applicable law, regulation or OCC or FDIC
interpretation to be taken or made by the Board of Directors of the Association
or other persons prior to an advancement of expenses. The Association shall
cease advancing expenses at any time its Board of Directors believes that any
of the prerequisites for advancement of expenses are no longer being met.
(d) Right of Claimant to Bring Suit. If a claim under subsection (a) of the
section is not paid in full by the Association within thirty (30) days after
written claim has been received by the Association, the claimant may at any time
thereafter bring suit against the Association to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Association to recover an advancement of expenses pursuant
to the terms of an undertaking, the claimant shall be entitled to be paid also
the expense of prosecuting or defending such claim. It shall be a defense to
any such action brought by the claimant to enforce a right to indemnification
hereunder (other than an action brought to enforce a claim for an advancement
of expenses where the required undertaking, if any, has been tendered to the
Association) that the claimant has not met any applicable standard for
indemnification under the law of the state in which the Association's ultimate
parent company is incorporated. In any suit brought by the Association to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Association shall be entitled to recover such expenses upon a final
adjudication that the claimant has not met any applicable standard for
indemnification standard for indemnification under the law of the state in
which the Association's ultimate parent company is incorporated.
(e) Non-Exclusivity of Rights. The rights to indemnification and the
advancement of expenses conferred in this section shall not be exclusive of any
other right which any person may have or hereafter acquired under any statute,
agreement, vote of stockholders or disinterested directors or otherwise.
(f) Insurance. The Association may purchase, maintain, and make payment or
reimbursement for reasonable premiums on, insurance to protect itself and any
director, officer, employee or agent of the Association or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Association would have the power to
indemnify such person against such expense, liability or loss under the law of
the state in which the Association's ultimate parent company is incorporated;
provided however, that such insurance shall explicitly exclude insurance
coverage for a final order of a federal bank regulatory agency assessing civil
money penalties against an Association director, officer, employee or agent.
ELEVENTH. These articles of association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The notice of any shareholders' meeting at
which an amendment to the articles of association of this Association is to be
considered shall be given as hereinabove set forth.
I hereby certify that the articles of association of this Association, in their
entirety, are listed above in items first through eleventh.
Secretary/Assistant Secretary
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Dated at , as of .
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Revision of February 15, 1996
<PAGE>
EXHIBIT 2
[LOGO]
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COMPTROLLER OF THE CURRENCY
ADMINISTRATOR OF NATIONAL BANKS
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Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify
that:
(1) The Comptroller of the Currency, pursuant to Revised Statutes
324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession,
custody and control of all records pertaining to the chartering, regulation and
supervision of all National Banking Associations.
(2) "Fleet National Bank of Connecticut", Hartford, Connecticut,
(Charter No. 1338), is a National Banking Association formed under the
laws of the United States and is authorized thereunder to transact the
business of banking on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at
the Treasury Department, in the City of
Washington and District of Columbia, this
4th day of April, 1996.
/s/ EUGENE A. LUDWIG
----------------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 2
[LOGO]
- --------------------------------------------------------------------------------
COMPTROLLER OF THE CURRENCY
ADMINISTRATOR OF NATIONAL BANKS
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Washington, D.C. 20219
Certification of Fiduciary Powers
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify
the records in this Office evidence "Fleet National Bank of Connecticut",
Hartford, Connecticut, (Charter No. 1338), was granted, under the hand
and seal of the Comptroller, the right to act in all fiduciary capacities
authorized under the provisions of The Act of Congress approved
September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a. I further certify the
authority so granted remains in full force and effect.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
Office of the Comptroller of the Currency
to be affixed to these presents at the
Treasury Department, in the City of
Washington and District of Columbia, this
4th day of April, 1996.
/s/ EUGENE A. LUDWIG
----------------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 4
AMENDED AND RESTATED BY-LAWS OF
FLEET NATIONAL BANK
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. The regular annual meeting of the shareholders for
the election of Directors and the transaction of any other business that may
properly come before the meeting shall be held at the Main Office of the
Association, or such other place as the Board of Directors may designate, on
the fourth Thursday of April in each year at 1:15 o'clock in the afternoon
unless some other hour of such day is fixed by the Board of Directors.
If, from any cause, an election of Directors is not made on such day, the Board
of Directors shall order the election to be held on some subsequent day, of
which special notice shall be given in accordance with the provisions of law,
and of these bylaws.
Section 2. Special Meetings. Special meetings of the shareholders may be called
at any time by the Board of Directors, the President, or any shareholders
owning not less than twenty-five percent (25%) of the stock of the Association.
Section 3. Notice of Meetings of Shareholders. Except as otherwise provided
by law, notice of the time and place of annual or special meetings of the
shareholders shall be mailed, postage prepaid, at least ten (10) days before
the date of the meeting to each shareholder of record entitled to vote thereat
at his address as shown upon the books of the Association; but any failure to
mail such notice to any shareholder or any irregularity therein, shall not
affect the validity of such meeting or of any of the proceedings thereat.
Notice of a special meeting shall also state the purpose of the meeting.
Section 4. Quorum; Adjourned Meetings. Unless otherwise provided by law, a
quorum for the transaction of business at every meeting of the shareholders
shall consist of not less than two-fifths (2/5) of the outstanding capital
stock represented in person or by proxy; less than such quorum may adjourn the
meeting to a future time. No notice need be given of an adjourned annual or
special meeting of the shareholders if the adjournment be to a definite place
and time.
Section 5. Votes and Proxies. At every meeting of the shareholders, each
share of the capital stock shall be entitled to one vote except as otherwise
provided by law. A majority of the votes cast shall decide every question
or matter submitted to the shareholder at any meeting, unless otherwise
provided by law or by the Articles of Association or these By-laws. Share-
holders may vote by proxies duly authorized in writing and filed with the
Cashier, but no officer, clerk, teller or bookeeper of the Association may act
as a proxy.
<PAGE>
Section 6. Nominations to Board of Directors. At any meeting of shareholders
held for the election of Directors, nominations for election to the Board of
Directors may be made, subject to the provisions of this section, by any share-
holder of record of any outstanding class of stock of the Association entitled
to vote for the election of Directors. No person other than those whose names
are stated as proposed nominees in the proxy statement accompanying the notice
of the meeting may be nominated as such meeting unless a shareholder shall have
given to the President of the Association and to the Comptroller of the
Currency, Washington, DC written notice of intention to nominate such other
person mailed by certified mail or delivered not less than fourteen (14) days
nor more than fifty (50) days prior to the meeting of shareholders at which
such nomination is to be made; provided, however, that if less than twenty-one
(21) days' notice of such meeting is given to shareholders, such notice of
intention to nominate shall be mailed by certified mail or delivered to said
President and said Comptroller on or before the seventh day following the day
on which the notice of such meeting was mailed. Such notice of intention to
nominate shall contain the following information to the extent known to the
notifying shareholder: (a) the name and address of each proposed nominee; (b)
the principal occupation of each proposed nominee; (c) the total number of
shares of capital stock of the Association that will be voted for each proposed
nominee; (d) the name and residence address of the notifying shareholder; and
(e) the number of shares of capital stock of the Association owned by the
notifying shareholder. In the event such notice is given, the proposed nominee
may be nominated either by the shareholder giving such notice or by any other
shareholder present at the meeting at which such nomination is to be made.
Such notice may contain the names of more than one proposed nominee, and if
more than one is named, any one or more of those named may be nominated.
Section 7. Action Taken Without a Shareholder Meeting. Any action requiring
shareholder approval or consent may be taken without a meeting and without
notice of such meeting by written consent of the shareholders.
ARTICLE II
DIRECTORS
Section 1. Number. The Board of Directors shall consist of such number of
shareholders, not less than five (5) nor more than twenty-five (25), as from
time to time shall be determined by a majority of the votes to which all of its
shareholders are at the time entitled, or by the Board of Directors as
hereinafter provided.
Section 2. Mandatory Retirement for Directors. No person shall be elected a
director who has attained the age of 68 and no person shall continue to serve
as a director after the date of the first meeting of the stockholders of the
Association held on or after the date on which such person attains the age of
68; provided, however, that any director serving on the Board as of December
15, 1995 who has attanined the age of 65 on or prior to such date shall be
permitted to continue to serve as a director until the date of the first
meeting of the stockholders of the Association held on or after the date on
which such person attains the age of 70.
-2-
<PAGE>
Section 3. General Powers. The Board of Directors shall exercise all the
coporate powers of the Association, except as expressly limited by law, and
shall have the control, management, direction and dispositon of all its
property and affairs.
Section 4. Annual Meeting. Immediately following a meeting of shareholders
held for the election of Directors, the Cashier shall notify the directors-
elect who may be present of their election and they shall then hold a meeting
at the Main Office of the Association, or such other place as the Board of
Directors may designate, for the purpose of taking their oaths, organizing the
new Board, electing officers and transacting any other business that may come
before such meeting.
Section 5. Regular Meeting. Regular meetings of the Board of Directors shall
be held without notice at the Main Office of the Association, or such other
place as the Board of Directors may designate, at such dates and times as the
Board shall determine. If the day designated for a regular meeting falls on a
legal holiday, the meeting shall be held on the next business day.
Section 6. Special Meetings. A special meeting of the Board of Directors may
be called at anytime upon the written request of the Chairman of the Board, the
President, or of two Directors, stating the purpose of the meeting. Notice of
the time and place shall be given not later than the day before the date of the
meeting, by mailing a notice to each Director at his last known address, by
delivering such notice to him personally, or by telephoning.
Section 7. Quorum; Votes. A majority of the Board of Directors at the time
holding office shall constitute a quorum for the transaction of all business,
except when otherwise provided by law, but less than a quorum may adjourn
a meeting from time to time, and the meeting may be held, as adjourned, without
further notice. If a quorum is present when a vote is taken, the affirmative
vote of a majority of Directors present is the act of the Board of Directors.
Section 8. Action by Directors Without a Meeting. Any action requiring
Director approval or consent may be taken without a meeting and without notice
of such meeting by written consent of all the Directors.
Section 9. Telephonic Participation in Directors' Meetings. A Director or
member of a Committee of the Board of Directors may participate in a meeting of
the Board or of such Committee may participate in a meeting of the Board or of
such Committee by means of a conference telephone or similar communications
equipment enabling all Directors participating in the meeting to hear one
another, and participation in such a meeting shall constitute presence in person
at such a meeting.
Section 10. Vacancies. Vacancies in the Board of Directors may be filled by
the remaining members of the Board at any regular or special meeting of the
Board.
Section 11. Interim Appointments. The Board of Directors shall, if the share-
holders at any meeting for the election of Directors have determined a number
of Directors less than twenty-five (25), have the power, by affirmative vote of
the majority of all the Directors, to increase such number of Directors to not
more than twenty-five (25) and to elect Directors to fill the resulting
vacancies and to serve until the next annual meeting of shareholders or the
next election of Directors; provided, however, that the number of Directors
shall not be so increased by more than two (2) if the number last determined
by shareholders was fifteen (15) or less, or increased by more than four (4) if
the number last determined by shareholders was sixteen (16) or more.
Section 12. Fees. The Board of Directors shall fix the amount and direct the
payment of fees which shall be paid to each Director for attendance at any
meeting of the Board of Directors or of any Committees of the Board.
ARTICLE III
COMMITTEES OF THE BOARD
Section 1. Executive Committee. The Board of Directors shall appoint from its
members an Executive Committee which shall consist of such number of persons as
the Board of Directors shall determine; the Chairman of the Board and the
President shall be members ex-officio of the Executive Committee with full
voting power. The Chairman of the Board or the President may from time to time
appoint from the Board of Directors as temporary additional members of the
Executive Committee, with full voting powers, not more than two members to serve
for such periods as the Chairman of the Board or the President may determine.
The Board of Directors shall designate a member of the Executive Committee to
serve as Chairman thereof. A meeting of the Executive Committee may be called
at any time upon the written request of the Chairman of the Board, the President
or the Chairman of the Executive Committee, stating the purpose of the meeting.
Not less than twenty four hours' notice of said meeting shall be given to each
member of the Committee personally, by telephoning, or by mail. The Chairman of
the Executive Committee or, in his absence, a member of the Committee chosen by
a majority of the members present shall preside at meetings of the Executive
Committee.
-3-
<PAGE>
The Executive Committee shall possess and may exercise all the powers of the
Board when the Board is not in session except such as the Board, only, by law,
is authorized to exercise; it shall keep minutes of its acts and proceedings
and cause same to be presented and reported at every regular meeting and at any
special meeting of the Board including specifically, all its actions relating
to loans and discounts.
All acts done and powers and authority conferred by the Executive Committee,
from time to time, within the scope of its authority, shall be deemed to be,
and may be certified as being, the acts of and under the authority of the
Board.
Section 2. Risk Management Committee. The Board shall appoint from its
members a Risk Management Committee which shall consist of such number as the
Board shall determine. The Board shall designate a member of the Risk
Management Committee to serve as Chairman thereof. It shall be the duty of the
Risk Management Committee to (a) serve as the channel of communication with
management and the Board of Directors of Fleet Financial Group, Inc. to assure
that formal processes supported by management information systems are in place
for the identification, evaluation and management of significant risks inherent
in or associated with lending activities, the loan portfolio, asset-liablity
management, the investment portfolio, trust and investment advisory activities,
the sale of nondeposit investment products and new products and services and
such additional activities or functions as the Board may determine from time
to time; (b) assure the formulation and adoption of policies approved by the
Risk Management Committee or Board governing lending activities, management of
the loan portfolio, the maintenance of an adequate allowance for loan and lease
losses, asset-liability management, the investment portfolio, the retail
sale of non-deposit investment products, new products and services and such
additional activities or functions as the Board may determine from time to time
(c) assure that a comprehensive independent loan review program is in place for
the early detection of problem loans and review significant reports of the loan
review department, management's responses to those reports and the risk
attributed to unresolved issues; (d) subject to control of the Board, exercise
general supervision over trust activities, the investment of trust funds, the
disposition of trust investments and the acceptance of new trusts and the terms
of such acceptance, and (e) perform such additional duties and exercise such
additional powers of the Board as the Board may determine from time to time.
Section 3. Audit Committee. The Board shall appoint from its members and
Audit Committee which shall consist of such number as the Board shall determine
no one of whom shall be an active officer or employee of the Association or
Fleet Financial Group, Inc. or any of its affiliates. In addition, members of
the Audit Committee must not (i) have served as an officer or employee of the
Association or any of its affiliates at any time during the year prior to their
appointment; or (ii) own, control, or have owned or controlled at any time
during the year prior to appointment, ten percent (10%) or more of any
outstanding class of voting securities of the Association. At least two (2)
members of the Audit Committee must have significant executive, professional,
educational or regulatory experience in financial, auditing, accounting,
or banking matters. No member of the Audit Commitee may have significant
direct or indirect credit or other relationships with the Association, the
termination of which would materially adversely affect the Association's
financial condition or results of operations.
The Board shall designate a member of the Audit Committee to serve as Chairman
thereof. It shall be the duty of the Audit Committee to (a) cause a continuous
audit and examination to be made on its behalf into the affairs of the
Association and to review the results of such examination; (b) review
significant reports of the internal auditing department, management's responses
to those reports and the risk attributed to unresolved issues; (c) review the
basis for the reports issued under Section 112 of The Federal Deposit Insurance
Corporation Improvement Act of 1991; (d) consider, in consultation with the
independent auditor and an internal auditing executive, the adequacy of the
Association's internal controls, including the resolution of identified material
weakness and reportable conditions; (e) review regulatory communications
received from any federal or state agency with supervisory jurisdiction or
other examining authority and monitor any needed corrective action by
management; (f) ensure that a formal system of internal controls is in place
for maintaining compliance with laws and regulations; (g) cause an audit of the
Trust Department at least once during each calendar year and within 15 months
of the last such audit or, in liew thereof, adopt a continuous audit system and
report to the Board each calendar year and within 15 months of the previous
report on the performance of such audit function; and (h) perform such
additional duties and exercise such additional powers of the Board as the Board
may determine from time to time.
The Audit Committee may consult with internal counsel and retain its own
outside counsel without approval (prior or otherwise) from the Board or
management and obligate the Association to pay the fees of such counsel.
-4-
<PAGE>
Section 4. Community Affairs Committee. The Board shall appoint from its
members a Community Affairs Committee which shall consist of such number as the
Board shall determine. The Board shall designate a member of the Community
Affairs Committee to serve as Chairman thereof. It shall be the duty of the
Commmunity Affairs Committee to (a) oversee compliance by the Association with
the Community Reinvestment Act of 1977, as amended, and the regulations
promulgated thereunder; and (b) perform such additional duties and exercise such
additional powers of the Board as the Board may determine from time to time.
Section 5. Regular Meetings. Except for the Executive Committee which shall
meet on an ad hoc basis as set forth in Section 1 of this Article, regular
meetings of the Committees of the Board of Directors shall be held, without
notice, at such time and place as the Committee or the Board of Directors may
appoint and as often as the business of the Association may require.
Section 6. Special Meetings. A Special Meeting of any of the Committees of
the Board of Directors may be called upon the written request of the Chairman
of the Board or the President, or of any two members of the respective
Committee, stating the purpose of the meeting. Not less than twenty-four
hours' notice of such special meeting shall be given to each member of the
Committee personally, by telephoning, or by mail.
Section 7. Emergency Meetings. An Emergency Meeting of any of the Committees
of the Board of Directors may be called at the request of the Chairman of the
Board or the President, who shall state that an emergency exists, upon not
less than one hour's notice to each member of the Committee personally or by
telephoning.
Section 8. Action Taken Without a Committee Meeting. Any Committee of the
Board of Directors may take action without a meeting and without notice of such
meeting by resolution assented to in writing by all members of such Committee.
Section 9. Quorum. A majority of a Committee of the Board of Directors shall
constitute a quorum for the transaction of any business at any meeting of such
Committee. If a quorum is not available, the Chairman of the Board or the
President shall have power to make temporary appointments to a Committee of-
members of the Board of Directors, to act in the place and stead of members who
temporarily cannot attend any such meeting; provided, however, that any
temporary appointment to the Audit Committee must meet the requirements for
members of that Committee set forth in Section 3 of this Article.
Section 10. Record. The committes of the Board of Directors shall keep a
record of their respective meetings and proceedings which shall be presented
at the regular meeting of the Board of Directors held in the calendar month
next following the meetings of the Committees. If there is no regular Board
of Directors meeting held in the calendar month next following the meeting of
a Committee, then such Committee's records shall be presented at the next
regular Board of Directors meeting held in a month subsequent to such Committee
meeting.
Section 11. Changes and Vacancies. The Board of Directors shall have power
to change the members of any Committee at any time and to fill vacancies on any
Committee; provided, however, that any newly appointed member of the Audit
Committee must meet the requirements for members of that Committee set forth in
Section 3 of this Article.
Section 12. Other Committees. The Board of Directors may appoint, from time
to time, other committees of one or more persons, for such purposes and with
such powers as the Board may determine.
ARTICLE IV
WAIVER OF NOTICE OF MEETINGS
Section 1. Waiver. Whenever notice is required to be given to any shareholder,
Director, or member of a Committee of the Board of Directors, such notice may
be waived in writing either before or after such meeting by any shareholder,
Director or Committee member respectively, as the case may be, who may be
entitled to such notice; and such notice will be deemed to be waived by
attendance at any such meeting.
-5-
<PAGE>
ARTICLE V
OFFICERS AND AGENTS
Section 1. Officers. The Board shall appoint a Chairman of the Board and a
President, and shall have the power to appoint one or more Executive Vice
Presidents, one or more Senior Vice Presidents, one or more Vice Presidents, a
Cashier, a Secretary, an Auditor, a Controller, one or more Trust Officers and-
such other officers as are deemed necessary or desirable for the proper
transaction of business of the Association. The Chairman of the Board and the
President shall be appointed from members of the Board of Directors. Any two
or more offices, except those of President and Cashier, or Secretary, may be
held by the same person. The Board may, from time to time, by resolution
passed by a majority of the entire Board, designate one or more officers of the
Association or of an affiliate or of Fleet Financial Group, Inc. with power to
appoint one or more Vice Presidents and such other officers of the Association
below the level of Vice President as the officer or officers designated in such
resolution deem necessary or desirable for the proper transaction of the
business of the Association.
Section 2. Chairman of the Board. The chairman of the Board shall preside at
all meetings of the Board of Directors. Subject to definition by the Board of
Directors, he shall have general executive powers and such specific powers and
duties as from time to time may be conferred upon or assigned to him by the
Board of Directors.
Section 3. President. The President shall preside at all meetings of the
Board of Directors if there be no Chairman or if the Chairman be absent.
Subject to definition by the Board of Directors, he shall have general
executive powers and such specific powers and duties as from time to time may
be conferred upon or assigned to him by the Board of Directors.
-6-
<PAGE>
Section 4. Cashier and Secretary. The Cashier shall be the Secretary of the
Board and of the Executive Committee, and shall keep accurate minutes of their
meetings and of all meetings of the shareholders. He shall attend to the
giving of all notices required by these By-laws. He shall be custodian of the
corporate seal, records, documents and papers of the Association. He shall
have such powers and perform such duties as pertain by law or regulation to the
office of Cashier, or as are imposed by these By-laws, or as may be delegated
to him from time to time by the Board of Directors, the Chairman of the Board
or the President.
Section 5. Auditor. The Auditor shall be the chief auditing officer of the
Association. He shall continuously examine the affairs of the Association and
from time to time shall report to the Board of Directors. He shall have such
powers and perform such duties as are conferred upon, or assigned to him by
these By-laws, or as may be delegated to him from time to time by the Board
of Directors.
Section 6. Officers Seriatim. The Board of Directors shall designate from
time to time not less than two officers who shall in the absence or disability
of the Chairman or President or both, succeed seriatim to the duties and
responsibilities of the Chairman and President respectively.
Section 7. Clerks and Agents. The Board of Directors may appoint, from time
to time, such clerks, agents and employees as it may deem advisable for the
prompt and orderly transaction of the business of the Association, define
their duties, fix the salaries to be paid them and dismiss them. Subject to
the authority of the Board of Directors, the Chairman of the Board or the
President, or any other officer of the Association authorized by either of them
may appoint and dismiss all or any clerks, agents and employees and prescribe
their duties and the conditions of their employment, and from time to time
fix their compensation.
Section 8. Tenure. The Chairman of the Board of Directors and the President
shall, except in the case of death, resignation, retirement or disqualification
under these By-laws, or unless removed by the affirmative vote of at least two-
thirds of all of the members of the Board of Directors, hold office for the
term of one year or until their respective successors are appointed. Either
of such officers appointed to fill a vacancy occurring in an unexpired term
shall serve for such unexpired term of such vacancy. All other officers,
clerks, agents, attorneys-in-fact and employees of the Association shall hold
office during the pleasure of the Board of Directors or of the officer or
committee appointing them respectively.
ARTICLE VI
TRUST DEPARTMENT
Section 1. General Powers and Duties. All fiduciary powers of the Association
shall be exercised through the Trust Department, subject to such regulations as
the Comptroller of the Currency shall from time to time establish. The Trust
Department shall be to placed under the management and immediate supervision
of an officer or officers appointed by the Board of Directors. The duties of
all officers of the Trust Department shall be to cause the policies and
instructions of the Board and the Risk Management Committee with respect to the
trusts under their supervision to be carried out, and to supervise the due
performance of the trusts and agencies entrusted to the Association and under
their supervision, in accordance with law and in accordance with the terms of
such trusts and agencies.
-7-
<PAGE>
ARTICLE VII
BRANCH OFFICES
Section 1. Establishment. The Board of Directors shall have full power to
establish, to discontinue, or, from time to time, to change the location of any
branch office, subject to such limitations as may be provided by law.
Section 2. Supervision and Control. Subject to the general supervision and
control of the Board of Directors, the affairs of branch offices shall be
under the immediate supervision and control of the President or of such other
officer or officers, employee or employees, or other individuals as the Board
of Directors may from time to time determine, with such powers and duties as
the Board of Directors may confer upon or assign to him or them.
ARTICLE VIII
SIGNATURE POWERS
Section 1. Authorization. The power of officers, employees, agents and
attorneys to sign on behalf of and to affix the seal of the Association shall
be prescribed by the Board of Directors or by the Executive Committee or by
both; provided that the President is authorized to restrict such power of any
officer, employee, agent or attorney to the business of a specific department
or departments, or to a specific branch office or branch offices. Facsimile
signatures may be authorized.
-8-
<PAGE>
ARTICLE IX
STOCK CERTIFICATES AND TRANSFERS
Section 1. Stock Records. The Trust Department shall have custody of the
stock certificate books and stock ledgers of the Association, and shall make
all transfers of stock, issue certificates thereof and disburse dividends
declared thereon.
Section 2. Form of Certificate. Every shareholder shall be entitled to a
certificate conforming to the requirements of law and otherwise in such form
as the Board of Directors may approve. The certificates shall state on the
face thereof that the stock is transferable only on the books of the
Association and shall be signed by such officers as may be prescribed from time
to time by the Board of Directors or Executive Committee. Facsimile signatures
may be authorized.
Section 3. Transfers of Stock. Transfers of stock shall be made only on the
books of the Association by the holder in person, or by attorney duly
authorized in writing, upon surrender of the certificate therefor properly
endorsed, or upon the surrender of such certificate accompanied by a properly
executed written assignment of the same, or a written power of attorney to
sell, assign or transfer the same or the shares represented thereby.
Section 4. Lost Certificate. The Board of Directors or Executive Committee
may order a new certificate to be issued in place of a certificate lost or
destroyed, upon proof of such loss or destruction and upon tender to the
Association by the shareholder, of a bond in such amount and with or without
surety, as may be ordered, indemnifying the Association against all liability,
loss, cost and damage by reason of such loss or destruction and the issuance
of a new certificate.
Section 5. Closing Transfer Books. The Board of Directors may close the
transfer books for a period not exceeding thirty days preceding any regular
or special meeting of the shareholders, or the day designated for the payment
of a dividend or the allotment of rights. In lieu of closing the transfer
books the Board of Directors may fix a day and hour not more than thirty days
prior to the day of holding any meeting of the shareholders, or the day
designated for the payment of a dividend, or the day designated for the
allotment of rights, or the day when any change of conversion or exchange of
capital stock is to go into effect, as the day as of which shareholders
entitled to notice of and to vote at such meetings or entitled to such dividend
or to such allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock, shall be determined, and
only such shareholders as shall be shareholders of record on the day and hour
so fixed shall be entitled to notice of and to vote at such meeting or to
receive payment of such dividend or to receive such allotment of rights or to
exercise such rights, as the case may be.
ARTICLE X
THE CORPORATE SEAL
Section 1. Seal. The following is an impression of the seal of the
Association adopted by the Board of Directors.
ARTICLE XI
BUSINESS HOURS
Section 1. Business Hours. The main office of this Association and each
branch office thereof shall be open for business on such days, and for such
hours as the Chairman, or the President, or any Executive Vice President, or
such other officer as the Board of Directors shall from time to time
designate, may determine as to each office to conform to local custom and
convenience, provided that any one or more of the main and branch offices or
certain departments thereof may be open for such hours as the President, or
such other officer as the Board of Directors shall from time to time designate,
may determine as to each office or department on any legal holiday on which
work is not prohibited by law, and provided further that any one or more of
the main and branch offices or certain departments thereof may be ordered
closed or open on any day for such hours as to each office or department as
the President, or such other officer as the Board of Directors shall from time
to time designate, subject to applicable laws regulations, may determine when
such action may be required by reason of disaster or other emergency condition.
ARTICLE IX
CHANGES IN BY-LAWS
Section 1. Amendments. These By-laws may be amended upon vote of a majority
of the entire Board of Directors at any meeting of the Board, provided ten (10)
day's notice of the proposed amendment has been given to each member of the
Board of Directors. No amendment may be made unless the By-law, as amended, is
consistent with the requirements of law and of the Articles of Association.
These By-laws may also be amended by the Association's shareholders.
A true copy
Attest:
Secretary/Assistant Secretary
- ---------------------------------------
Dated at , as of .
--------------------------------------- ----------------------
Revision of January 11, 1993
-9-
<PAGE>
EXHIBIT 5
CONSENT OF THE TRUSTEE
REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
The undersigned, as Trustee under the Indenture to be entered into between
Pogo Producing Company and Fleet National Bank, as Trustee,
does hereby consent that, pursuant to Section 321(b) of the Trust Indenture
Act of 1939, reports of examinations with respect to the undersigned by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FLEET NATIONAL BANK,
AS TRUSTEE
By /s/ Philip G. Kane Jr.
-------------------------------
Its: Vice President
Dated:
<PAGE>
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Expires March 31, 1999
Federal Financial Institutions Examination Council
- --------------------------------------------------------------------------------
[FEDERAL FINANCIAL Please refer to page i, [1]
INSTITUTIONS EXAMINATION Table of Contents, for
COUNCIL LOGO] the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES--FFIEC 031
(960630)
REPORT AT THE CLOSE OF BUSINESS JUNE 30, 1996 -----------
(RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State member banks);
12 U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section 161
(National banks).
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
- --------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National banks.
I, Giro S. DeRosa, Vice President
-----------------------------------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and
Income (including the supporting schedules) have been prepared in conformance
with the instructions issued by the appropriate Federal regulatory authority
and are true to the best of my knowledge and belief.
/s/ Giro DeRosa
- --------------------------------------------------------------------------------
Signature of Officer Authorized to Sign Report
July 25, 1996
- --------------------------------------------------------------------------------
Date of Signature
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in
some cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
/s/
- --------------------------------------------------------------------------------
Director (Trustee)
/s/
- --------------------------------------------------------------------------------
Director (Trustee)
/s/
- --------------------------------------------------------------------------------
Director (Trustee)
- --------------------------------------------------------------------------------
For Banks Submitting Hard Copy Report Forms:
State Member Banks: Return the original and one copy to the appropriate Federal
Reserve District Bank.
State Nonmember Banks: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
National Banks: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
- --------------------------------------------------------------------------------
FDIC Certificate Number | 0 | 2 | 4 | 9 | 9 | Banks should affix
--------------------- the address label
(RCRI 90150) in this space.
CALL NO. 196 31 06-30-96
STAR: 25-0590 00327 STCERT: 25-02490
FLEET NATIONAL BANK
ONE MONARCH PLACE
SPRINGFIELD, MA 01102
Board of Governors of the Federal Reserve System, Federal Deposit
Insurance Corporation, Office of the Comptroller of the Currency
<PAGE>
FOR BANKS SUBMITTING HARD COPY REPORT FORMS:
STATE MEMBER BANKS: Return the original and one copy to the appropriate Federal
Reserve District Bank.
STATE NONMEMBER BANKS: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
NATIONAL BANKS: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C>
___ ___
FDIC Certificate Number | 0 | 2 | 4 | 9 | 9 | | Banks should affix the address label in this space. |
______________________
(RCRI 9050) CALL NO. 196 31 06-30-96
STBK: 25-0590 00327 STCERT: 25-02499
FLEET NATIONAL BANK
ONE MONARCH PLACE
SPRINGFIELD, MA 01102
|___ ___|
</TABLE>
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE>
FFIEC 031
Page i
/2/
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices
________________________________________________________________________________
TABLE OF CONTENTS
SIGNATURE PAGE Cover
REPORT OF INCOME
Schedule RI--Income Statement...........................................RI-1,2,3
Schedule RI-A--Changes in Equity Capital....................................RI-4
Schedule RI-B--Charge-offs and Recoveries and
Changes in Allowance for Loan and Lease
Losses..................................................................RI-4,5
Schedule RI-C--Applicable Income Taxes by
Taxing Authority..........................................................RI-5
Schedule RI-D--Income from
International Operations..................................................RI-6
Schedule RI-E--Explanations...............................................RI-7,8
REPORT OF CONDITION
Schedule RC--Balance Sheet................................................RC-1,2
Schedule RC-A--Cash and Balances Due
From Depository Institutions..............................................RC-3
Schedule RC-B--Securities...............................................RC-3,4,5
Schedule RC-C--Loans and Lease Financing
Receivables:
Part I. Loans and Leases..............................................RC-6,7
Part II. Loans to Small Businesses and
Small Farms (included in the forms for
June 30 only).....................................................RC-7a,7b
Schedule RC-D--Trading Assets and Liabilities
(to be completed only by selected banks)..................................RC-8
Schedule RC-E--Deposit Liabilities....................................RC-9,10,11
Schedule RC-F--Other Assets................................................RC-11
Schedule RC-G--Other Liabilities...........................................RC-11
Schedule RC-H--Selected Balance Sheet Items for
Domestic Offices.........................................................RC-12
Schedule RC-I--Selected Assets and Liabilities
of IBFs..................................................................RC-13
Schedule RC-K--Quarterly Averages..........................................RC-13
Schedule RC-L--Off-Balance Sheet Items...............................RC-14,15,16
Schedule RC-M--Memoranda................................................RC-17,18
Schedule RC-N--Past Due and Nonaccrual Loans,
Leases, and Other Assets..............................................RC-19,20
Schedule RC-O--Other Data for Deposit
Insurance Assessments.................................................RC-21,22
Schedule RC-R--Regulatory Capital.......................................RC-23,24
Optional Narrative Statement Concerning the
Amounts Reported in the Reports of
Condition and Income.....................................................RC-25
Special Report (TO BE COMPLETED BY ALL BANKS)
Schedule RC-J--Repricing Opportunities (sent only to
and to be completed only by savings banks)
DISCLOSURE OF ESTIMATED BURDEN
The estimated average burden associated with this information collection is
32.2 hours per respondent and is estimated to vary from 15 to 230 hours per
response, depending on individual circumstances. Burden estimates include the
time for reviewing instructions, gathering and maintaining data in the required
form, and completing the information collection, but exclude the time for
compiling and maintaining business records in the normal course of a
respondent's activities. Comments concerning the accuracy of this burden
estimate and suggestions for reducing this burden should be directed to the
Office of Information and Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 20503, and to one of the following:
Secretary
Board of Governors of the Federal Reserve System
Washington, D.C. 20551
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
For information or assistance, National and State nonmember banks should
contact the FDIC's Call Reports Analysis Unit, 550 17th Street, NW, Washington,
D.C. 20429, toll free on (800) 688-FDIC (3342), Monday through Friday between
8:00 a.m. and 5:00 p.m., Eastern time. State member banks should contact their
Federal Reserve District Bank.
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RI-1
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
Consolidated Report of Income
for the period January 1, 1996 - June 30, 1996
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
<TABLE>
<CAPTION>
Schedule RI--Income Statement _________
| I480 |
______________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
______________________________________________________________________________________________|_____________________|
<S> <C> <C>
1. Interest income: | ////////////////// |
a. Interest and fee income on loans: | ////////////////// |
(1) In domestic offices: | ////////////////// |
(a) Loans secured by real estate .................................................. | 4011 616,395 | 1.a.(1)(a)
(b) Loans to depository institutions .............................................. | 4019 588 | 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to farmers ........... | 4024 286 | 1.a.(1)(c)
(d) Commercial and industrial loans ............................................... | 4012 562,807 | 1.a.(1)(d)
(e) Acceptances of other banks .................................................... | 4026 261 | 1.a.(1)(e)
(f) Loans to individuals for household, family, and other personal expenditures: | ////////////////// |
(1) Credit cards and related plans ............................................ | 4054 9,643 | 1.a.(1)(f)(1)
(2) Other ..................................................................... | 4055 97,346 | 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions ........................ | 4056 0 | 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and political | ////////////////// |
subdivisions in the U.S.: | ////////////////// |
(1) Taxable obligations ....................................................... | 4503 0 | 1.a.(1)(h)(1)
(2) Tax-exempt obligations .................................................... | 4504 5,232 | 1.a.(1)(h)(2)
(i) All other loans in domestic offices ........................................... | 4058 84,576 | 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs ..................... | 4059 1,981 | 1.a.(2)
b. Income from lease financing receivables: | ////////////////// |
(1) Taxable leases .................................................................... | 4505 75,341 | 1.b.(1)
(2) Tax-exempt leases ................................................................. | 4307 791 | 1.b.(2)
c. Interest income on balances due from depository institutions:(1) | ////////////////// |
(1) In domestic offices ............................................................... | 4105 914 | 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs ..................... | 4106 142 | 1.c.(2)
d. Interest and dividend income on securities: | ////////////////// |
(1) U.S. Treasury securities and U.S. Government agency and corporation obligations ... | 4027 209,142 | 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.: | ////////////////// |
(a) Taxable securities ............................................................ | 4506 0 | 1.d.(2)(a)
(b) Tax-exempt securities ......................................................... | 4507 2,953 | 1.d.(2)(b)
(3) Other domestic debt securities .................................................... | 3657 12,164 | 1.d.(3)
(4) Foreign debt securities ........................................................... | 3658 3,348 | 1.d.(4)
(5) Equity securities (including investments in mutual funds) ......................... | 3659 10,212 | 1.d.(5)
e. Interest income from trading assets.................................................... | 4069 360 | 1.e.
______________________
</TABLE>
____________
(1) Includes interest income on time certificates of deposit not held for
trading.
3
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RI-2
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RI--Continued
________________
Dollar Amounts in Thousands | Year-to-date |
___________________________________________________________________________________ ______________
<S> <C> <C>
1. Interest income (continued) | RIAD Bil Mil Thou |
f. Interest income on federal funds sold and securities purchased | ////////////////// |
under agreements to resell in domestic offices of the bank and of | ////////////////// |
its Edge and Agreement subsidiaries, and in IBFs .................... | 4020 24,925 | 1.f.
g. Total interest income (sum of items 1.a through 1.f) ................ | 4107 1,719,407 | 1.g.
2. Interest expense: | ////////////////// |
a. Interest on deposits: | ////////////////// |
(1) Interest on deposits in domestic offices: | ////////////////// |
(a) Transaction accounts (NOW accounts, ATS accounts, and | ////////////////// |
telephone and preauthorized transfer accounts) .............. | 4508 8,583 | 2.a.(1)(a)
(b) Nontransaction accounts: | ////////////////// |
(1) Money market deposit accounts (MMDAs) ................... | 4509 133,915 | 2.a.(1)(b)(1)
(2) Other savings deposits .................................. | 4511 26,678 | 2.a.(1)(b)(2)
(3) Time certificates of deposit of $100,000 or more ........ | 4174 88,690 | 2.a.(1)(b)(3)
(4) All other time deposits ................................. | 4512 214,225 | 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement | ////////////////// |
subsidiaries, and IBFs .......................................... | 4172 50,022 | 2.a.(2)
b. Expense of federal funds purchased and securities sold under | ////////////////// |
agreements to repurchase in domestic offices of the bank and of | ////////////////// |
its Edge and Agreement subsidiaries, and in IBFs .................... | 4180 152,094 | 2.b.
c. Interest on demand notes issued to the U.S. Treasury, trading | ////////////////// |
liabilities, and other borrowed money ............................... | 4185 121,525 | 2.c.
d. Interest on mortgage indebtedness and obligations under | ////////////////// |
capitalized leases .................................................. | 4072 361 | 2.d.
e. Interest on subordinated notes and debentures ....................... | 4200 26,110 | 2.e.
f. Total interest expense (sum of items 2.a through 2.e) ............... | 4073 822,203 | 2.f.
___________________________
3. Net interest income (item 1.g minus 2.f) ............................... | ////////////////// | RIAD 4074 | 897,204 | 3.
___________________________
4. Provisions: | ////////////////// |
___________________________
a. Provision for loan and lease losses ................................. | ////////////////// | RIAD 4230 | 21,672 | 4.a.
b. Provision for allocated transfer risk ............................... | ////////////////// | RIAD 4243 | 0 | 4.b.
___________________________
5. Noninterest income: | ////////////////// |
a. Income from fiduciary activities .................................... | 4070 144,614 | 5.a.
b. Service charges on deposit accounts in domestic offices ............. | 4080 111,736 | 5.b.
c. Trading revenue (must equal Schedule RI, sum of Memorandum | ////////////////// |
items 8.a through 8.d)............................................... A220 10,646 5.c.
d. Other foreign transaction gains (losses) ............................ | 4076 247 | 5.d.
e. Not applicable | ////////////////// |
f. Other noninterest income: | ////////////////// |
(1) Other fee income ................................................ | 5407 372,950 | 5.f.(1)
(2) All other noninterest income* ................................... | 5408 211,593 | 5.f.(2)
___________________________
g. Total noninterest income (sum of items 5.a through 5.f) ............. | ////////////////// | RIAD 4079 | 851,786 | 5.g.
6. a. Realized gains (losses) on held-to-maturity securities .............. | ////////////////// | RIAD 3521 | 1 | 6.a.
b. Realized gains (losses) on available-for-sale securities ............ | ////////////////// | RIAD 3196 | 16,126 | 6.b.
___________________________
7. Noninterest expense: | ////////////////// |
a. Salaries and employee benefits ...................................... | 4135 322,146 | 7.a.
b. Expenses of premises and fixed assets (net of rental income) | ////////////////// |
(excluding salaries and employee benefits and mortgage interest) .... | 4217 114,912 | 7.b.
c. Other noninterest expense* .......................................... | 4092 631,554 | 7.c.
___________________________
d. Total noninterest expense (sum of items 7.a through 7.c) ............ | ////////////////// | RIAD 4093 | 1,068,612 | 7.d.
___________________________
8. Income (loss) before income taxes and extraordinary items and other | ////////////////// |
___________________________
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d)| ////////////////// | RIAD 4301 | 674,833 | 8.
9. Applicable income taxes (on item 8) .................................... | ////////////////// | RIAD 4302 | 280,303 | 9.
___________________________
10. Income (loss) before extraordinary items and other adjustments | ////////////////// |
___________________________
(item 8 minus 9) ....................................................... | ////////////////// | RIAD 4300 | 394,530 | 10.
_________________________________________________
</TABLE>
____________
*Describe on Schedule RI-E--Explanations.
4
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RI-3
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RI--Continued
________________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
___________________________________________________________________________________ ______________
<S> <C> <C>
11. Extraordinary items and other adjustments: | ////////////////// |
a. Extraordinary items and other adjustments, gross of income taxes* . | 4310 0 | 11.a.
b. Applicable income taxes (on item 11.a)* ........................... | 4315 0 | 11.b.
c. Extraordinary items and other adjustments, net of income taxes | ////////////////// |__________________________
(item 11.a minus 11.b) ............................................ | ////////////////// | RIAD 4320 | 0 | 11.c.
12. Net income (loss) (sum of items 10 and 11.c) ......................... | ////////////////// | RIAD 4340 | 394,530 | 12.
_________________________________________________
</TABLE>
<TABLE>
<CAPTION>
__________
| I481 |
_______________
Memoranda | Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
______________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after | ////////////////// |
August 7, 1986, that is not deductible for federal income tax purposes .......................... | 4513 1,798 | M.1.
2. Income from the sale and servicing of mutual funds and annuities in domestic offices | ////////////////// |
(included in Schedule RI, item 8) ............................................................... | 8431 20,910 | M.2.
3.-4. Not applicable | ////////////////// |
5. Number of full-time equivalent employees on payroll at end of current period (round to | //// Number |
nearest whole number) ........................................................................... | 4150 9,852 | M.5.
6. Not applicable | ////////////////// |
7. If the reporting bank has restated its balance sheet as a result of applying push down | //// MM DD YY |
accounting this calendar year, report the date of the bank's acquisition ........................ | 9106 00/00/00 | M.7.
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments) | ////////////////// |
(sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c): | //// Bil Mil Thou |
a. Interest rate exposures ...................................................................... | 8757 1,428 | M.8.a.
b. Foreign exchange exposures ................................................................... | 8758 9,218 | M.8.b.
c. Equity security and index exposures .......................................................... | 8759 0 | M.8.c.
d. Commodity and other exposures ................................................................ | 8760 0 | M.8.d.
9. Impact on income of off-balance sheet derivatives held for purposes other than trading: | ////////////////// |
a. Net increase (decrease) to interest income.....................................................| 8761 (5,575)| M.9.a.
b. Net (increase) decrease to interest expense ...................................................| 8762 (5,752)| M.9.b.
c. Other (noninterest) allocations ...............................................................| 8763 (172)| M.9.c.
10. Credit losses on off-balance sheet derivatives (see instructions).................................| A251 0 | M.10.
</TABLE>
____________
*Describe on Schedule RI-E--Explanations.
5
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RI-4
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RI-A--Changes in Equity Capital
Indicate decreases and losses in parentheses. _________
| I483 |
_____________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
______________________________________________________________________________________________________|____________________|
<S> <C> <C>
1. Total equity capital originally reported in the December 31, 1995, Reports of Condition | ////////////////// |
and Income ...................................................................................... | 3215 1,342,473 | 1.
2. Equity capital adjustments from amended Reports of Income, net* ................................. | 3216 0 | 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) ............................ | 3217 1,342,473 | 3.
4. Net income (loss) (must equal Schedule RI, item 12) ............................................. | 4340 394,530 | 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net .............................. | 4346 0 | 5.
6. Changes incident to business combinations, net .................................................. | 4356 4,161,079 | 6.
7. LESS: Cash dividends declared on preferred stock ................................................ | 4470 0 | 7.
8. LESS: Cash dividends declared on common stock ................................................... | 4460 490,634 | 8.
9. Cumulative effect of changes in accounting principles from prior years* (see instructions | ////////////////// |
for this schedule) .............................................................................. | 4411 0 | 9.
10. Corrections of material accounting errors from prior years* (see instructions for this schedule) | 4412 0 | 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities ................ | 8433 (46,607)| 11.
12. Foreign currency translation adjustments ........................................................ | 4414 0 | 12.
13. Other transactions with parent holding company* (not included in items 5, 7, or 8 above) ........ | 4415 (1,003,722)| 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal Schedule RC, | ////////////////// |
item 28) ........................................................................................ | 3210 4,357,119 | 14.
______________________
</TABLE>
____________
*Describe on Schedule RI-E--Explanations.
<TABLE>
<CAPTION>
Schedule RI-B--Charge-offs and Recoveries and Changes
in Allowance for Loan and Lease Losses
Part I. Charge-offs and Recoveries on Loans and Leases
Part I excludes charge-offs and recoveries through
the allocated transfer risk reserve.
__________
| I486 |
__________________________________________
| (Column A) | (Column B) |
| Charge-offs | Recoveries |
____________________ ____________________
| Calendar year-to-date |
_________________________________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
1. Loans secured by real estate: | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ......................................... | 4651 35,701 | 4661 8,412 | 1.a.
b. To non-U.S. addressees (domicile) ..................................... | 4652 0 | 4662 0 | 1.b.
2. Loans to depository institutions and acceptances of other banks: | ////////////////// | ////////////////// |
a. To U.S. banks and other U.S. depository institutions .................. | 4653 0 | 4663 0 | 2.a.
b. To foreign banks ...................................................... | 4654 0 | 4664 0 | 2.b.
3. Loans to finance agricultural production and other loans to farmers ...... | 4655 2 | 4665 22 | 3.
4. Commercial and industrial loans: | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ......................................... | 4645 38,139 | 4617 19,005 | 4.a.
b. To non-U.S. addressees (domicile) ..................................... | 4646 0 | 4618 102 | 4.b.
5. Loans to individuals for household, family, and other personal | ////////////////// | ////////////////// |
expenditures: | ////////////////// | ////////////////// |
a. Credit cards and related plans ........................................ | 4656 1,137 | 4666 733 | 5.a.
b. Other (includes single payment, installment, and all student loans) ... | 4657 7,864 | 4667 2,681 | 5.b.
6. Loans to foreign governments and official institutions ................... | 4643 0 | 4627 0 | 6.
7. All other loans .......................................................... | 4644 826 | 4628 541 | 7.
8. Lease financing receivables: | ////////////////// | ////////////////// |
a. Of U.S. addressees (domicile) ......................................... | 4658 3,729 | 4668 3,241 | 8.a.
b. Of non-U.S. addressees (domicile) ..................................... | 4659 0 | 4669 0 | 8.b.
9. Total (sum of items 1 through 8) ......................................... | 4635 87,398 | 4605 34,737 | 9.
___________________________________________
</TABLE>
6
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RI-5
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RI-B--Continued
Part I. Continued
Memoranda
__________________________________________
| (Column A) | (Column B) |
| Charge-offs | Recoveries |
____________________ ____________________
| Calendar year-to-date |
_________________________________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou | RIAD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
1-3. Not applicable | ////////////////// | ////////////////// |
4. Loans to finance commercial real estate, construction, and land | ////////////////// | ////////////////// |
development activities (not secured by real estate) included in | ////////////////// | ////////////////// |
Schedule RI-B, part I, items 4 and 7, above .............................. | 5409 383 | 5410 1,374 | M.4.
5. Loans secured by real estate in domestic offices (included in | ////////////////// | ////////////////// |
Schedule RI-B, part I, item 1, above): | ////////////////// | ////////////////// |
a. Construction and land development ..................................... | 3582 189 | 3583 253 | M.5.a.
b. Secured by farmland ................................................... | 3584 145 | 3585 131 | M.5.b.
c. Secured by 1-4 family residential properties: | ////////////////// | ////////////////// |
(1) Revolving, open-end loans secured by 1-4 family residential | ////////////////// | ////////////////// |
properties and extended under lines of credit ..................... | 5411 2,650 | 5412 108 | M.5.c.(1)
(2) All other loans secured by 1-4 family residential properties ...... | 5413 13,892 | 5414 1,231 | M.5.c.(2)
d. Secured by multifamily (5 or more) residential properties ............. | 3588 837 | 3589 395 | M.5.d.
e. Secured by nonfarm nonresidential properties .......................... | 3590 17,988 | 3591 6,294 | M.5.e.
|_________________________________________|
</TABLE>
Part II. Changes in Allowance for Loan and Lease Losses
<TABLE>
<CAPTION>
_____________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Balance originally reported in the December 31, 1995, Reports of Condition and Income.......... | 3124 266,943 | 1.
2. Recoveries (must equal part I, item 9, column B above) ........................................ | 4605 34,737 | 2.
3. LESS: Charge-offs (must equal part I, item 9, column A above) ................................. | 4635 87,398 | 3.
4. Provision for loan and lease losses (must equal Schedule RI, item 4.a)......................... | 4230 21,672 | 4.
5. Adjustments* (see instructions for this schedule) ................................ ............ | 4815 636,497 | 5.
6. Balance end of current period (sum of items 1 through 5) (must equal Schedule RC, | ////////////////// |
item 4.b) ..................................................................................... | 3123 872,451 | 6.
|____________________|
</TABLE>
____________
*Describe on Schedule RI-E--Explanations.
Schedule RI-C--Applicable Income Taxes by Taxing Authority
Schedule RI-C is to be reported with the December Report of Income.
<TABLE>
<CAPTION>
| I489 |
____________ ________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Federal ....................................................................................... | 4780 N/A | 1.
2. State and local................................................................................ | 4790 N/A | 2.
3. Foreign ....................................................................................... | 4795 N/A | 3.
4. Total (sum of items 1 through 3) (must equal sum of Schedule RI, items 9 and 11.b) ............ | 4770 N/A | 4.
____________________________| |
5. Deferred portion of item 4 ........................................ | RIAD 4772 | N/A | ////////////////// | 5.
__________________________________________________
</TABLE>
7
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Fleet National Bank Call Date: 6/30/96 ST-BK: 25-0590 FFIEC 031
Address: One Monarch Place Page RI-6
City, State Zip: Springfield, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RI-D--Income from International Operations
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs where international operations
account for more than 10 percent of total revenues, total assets, or net income.
Part I. Estimated Income from International Operations
__________
| I492 |
______ ________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
_________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and Agreement subsidiaries, | ////////////////// |
and IBFs: | ////////////////// |
a. Interest income booked ................................................................... | 4837 N/A | 1.a.
b. Interest expense booked .................................................................. | 4838 N/A | 1.b.
c. Net interest income booked at foreign offices, Edge and Agreement subsidiaries, and IBFs | ////////////////// |
(item 1.a minus 1.b) ..................................................................... | 4839 N/A | 1.c.
2. Adjustments for booking location of international operations: | ////////////////// |
a. Net interest income attributable to international operations booked at domestic offices .. | 4840 N/A | 2.a.
b. Net interest income attributable to domestic business booked at foreign offices .......... | 4841 N/A | 2.b.
c. Net booking location adjustment (item 2.a minus 2.b) ..................................... | 4842 N/A | 2.c.
3. Noninterest income and expense attributable to international operations: | ////////////////// |
a. Noninterest income attributable to international operations .............................. | 4097 N/A | 3.a.
b. Provision for loan and lease losses attributable to international operations ............. | 4235 N/A | 3.b.
c. Other noninterest expense attributable to international operations ....................... | 4239 N/A | 3.c.
d. Net noninterest income (expense) attributable to international operations (item 3.a | ////////////////// |
minus 3.b and 3.c) ....................................................................... | 4843 N/A | 3.d.
4. Estimated pretax income attributable to international operations before capital allocation | ////////////////// |
adjustment (sum of items 1.c, 2.c, and 3.d) ................................................. | 4844 N/A | 4.
5. Adjustment to pretax income for internal allocations to international operations to reflect | ////////////////// |
the effects of equity capital on overall bank funding costs ................................. | 4845 N/A | 5.
6. Estimated pretax income attributable to international operations after capital allocation | ////////////////// |
adjustment (sum of items 4 and 5) ........................................................... | 4846 N/A | 6.
7. Income taxes attributable to income from international operations as estimated in item 6 .... | 4797 N/A | 7.
8. Estimated net income attributable to international operations (item 6 minus 7) .............. | 4341 N/A | 8.
______________________
<CAPTION>
Memoranda ______________________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
_________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Intracompany interest income included in item 1.a above ..................................... | 4847 N/A | M.1.
2. Intracompany interest expense included in item 1.b above .................................... | 4848 N/A | M.2.
______________________
</TABLE>
<TABLE>
<CAPTION>
Part II. Supplementary Details on Income from International Operations Required
by the Departments of Commerce and Treasury for Purposes of the U.S.
International Accounts and the U.S. National Income and Product Accounts
________________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
_________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Interest income booked at IBFs .............................................................. | 4849 N/A | 1.
2. Interest expense booked at IBFs ............................................................. | 4850 N/A | 2.
3. Noninterest income attributable to international operations booked at domestic offices | ////////////////// |
(excluding IBFs): | ////////////////// |
a. Gains (losses) and extraordinary items ................................................... | 5491 N/A | 3.a.
b. Fees and other noninterest income ........................................................ | 5492 N/A | 3.b.
4. Provision for loan and lease losses attributable to international operations booked at | ////////////////// |
domestic offices (excluding IBFs) ........................................................... | 4852 N/A | 4.
5. Other noninterest expense attributable to international operations booked at domestic offices | ////////////////// |
(excluding IBFs) ............................................................................ | 4853 N/A | 5.
______________________
</TABLE>
8
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Fleet National Bank Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: One Monarch Place Page RI-7
City, State Zip: Springfield, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RI-E--Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedules RI-A and RI-B, all extraordinary items and other adjustments in Schedule RI, and all
significant items of other noninterest income and other noninterest expense in Schedule RI. (See instructions for details.)
__________
| I495 |
______ ________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. All other noninterest income (from Schedule RI, item 5.f.(2)) | ////////////////// |
Report amounts that exceed 10% of Schedule RI, item 5.f.(2): | ////////////////// |
a. Net gains on other real estate owned ..................................................... | 5415 0 | 1.a.
b. Net gains on sales of loans .............................................................. | 5416 0 | 1.b.
c. Net gains on sales of premises and fixed assets .......................................... | 5417 0 | 1.c.
Itemize and describe the three largest other amounts that exceed 10% of | ////////////////// |
Schedule RI, item 5.f.(2): | ////////////////// |
_____________
d. | TEXT 4461 | Income on Mortgages Held for Resale | 4461 81,194 | 1.d.
e. | TEXT 4462 | Gain From Branch Divestitures | 4462 77,976 | 1.e.
___________
f. | TEXT 4463 |______________________________________________________________________________| 4463 | 1.f.
_____________
2. Other noninterest expense (from Schedule RI, item 7.c): | ////////////////// |
a. Amortization expense of intangible assets ................................................ | 4531 135,939 | 2.a.
Report amounts that exceed 10% of Schedule RI, item 7.c: | ////////////////// |
b. Net losses on other real estate owned .................................................... | 5418 0 | 2.b.
c. Net losses on sales of loans ............................................................. | 5419 0 | 2.c.
d. Net losses on sales of premises and fixed assets ......................................... | 5420 0 | 2.d.
Itemize and describe the three largest other amounts that exceed 10% of | ////////////////// |
Schedule RI, item 7.c: | ////////////////// |
_____________
e. | TEXT 4464 | Intercompany Corporate Support Function Charges | 4464 143,184 | 2.e.
___________
f. | TEXT 4467 | Intercompany Data Processing & Programming Charges | 4467 158,034 | 2.f.
___________
g. | TEXT 4468 |______________________________________________________________________________| 4468 | 2.g.
_____________
3. Extraordinary items and other adjustments (from Schedule RI, item 11.a) and | ////////////////// |
applicable income tax effect (from Schedule RI, item 11.b) (itemize and describe | ////////////////// |
all extraordinary items and other adjustments): | ////////////////// |
_____________
a. (1) | TEXT 4469 |__________________________________________________________________________| 4469 | 3.a.(1)
_____________
(2) Applicable income tax effect | RIAD 4486 | | ////////////////// | 3.a.(2)
_____________ ____________________________
b. (1) | TEXT 4487 |__________________________________________________________________________| 4487 | 3.b.(1)
_____________
(2) Applicable income tax effect | RIAD 4488 | | ////////////////// | 3.b.(2)
_____________ ____________________________
c. (1) | TEXT 4489 |__________________________________________________________________________| 4489 | 3.c.(1)
_____________
(2) Applicable income tax effect | RIAD 4491 | | ////////////////// | 3.c.(2)
____________________________
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A, | ////////////////// |
item 2) (itemize and describe all adjustments): | ////////////////// |
_____________
a. | TEXT 4492 |______________________________________________________________________________| 4492 | 4.a.
___________
b. | TEXT 4493 |______________________________________________________________________________| 4493 | 4.b.
_____________
5. Cumulative effect of changes in accounting principles from prior years (from | ////////////////// |
Schedule RI-A, item 9) (itemize and describe all changes in accounting principles): | ////////////////// |
_____________
a. | TEXT 4494 |______________________________________________________________________________| 4494 | 5.a.
___________
b. | TEXT 4495 |______________________________________________________________________________| 4495 | 5.b.
_____________
6. Corrections of material accounting errors from prior years (from Schedule RI-A, | ////////////////// |
item 10) (itemize and describe all corrections): | ////////////////// |
_____________
a. | TEXT 4496 | 4496 | 6.a.
___________|______________________________________________________________________________
b. | TEXT 4497 4497 | 6.b.
____________|____________________________________________________________________________________________________
</TABLE>
9
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Fleet National Bank Call Date: 6/30/96 ST-BK: 25-0590 FFIEC 031
Address: One Monarch Place Page RI-8
City, State Zip: Springfield, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RI-E--Continued
________________
| Year-to-date |
______ ______________
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
<S> <C> <C>
7. Other transactions with parent holding company (from Schedule RI-A, item 13) | ////////////////// |
(itemize and describe all such transactions): | ////////////////// |
_____________
a. | TEXT 4498 | Fleet National Bank Surplus Distribution to FFG | 4498 (1,003,722) | 7.a.
__________________________________________________________________________________________| |
b. | TEXT 4499 | | 4499 | 7.b.
___________________________________________________________________________________________
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B, part II, | ////////////////// |
item 5) (itemize and describe all adjustments): | ////////////////// |
_____________ | |
a. | TEXT 4521 | 12/31/95 Ending Balance of Pooled Entities | 4521 | 8.a.
___________________________________________________________________________________________| |
b. | TEXT 4522 | | 4522 | 8.b.
___________________________________________________________________________________________| |
____________________
9. Other explanations (the space below is provided for the bank to briefly describe, | I498 | I499 |
______________________
at its option, any other significant items affecting the Report of Income):
___
No comment |X| (RIAD 4769)
___
Other explanations (please type or print clearly):
(TEXT 4769)
</TABLE>
10
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Fleet National Bank Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: One Monarch Place Page RC-1
City, State Zip: Springfield, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
report the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
__________
| C400 |
____________ ________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
<S> <C> <C>
ASSETS | ////////////////// |
1. Cash and balances due from depository institutions (from Schedule RC-A): | ////////////////// |
a. Noninterest-bearing balances and currency and coin(1) ................................... | 0081 4,130,928 | 1.a.
b. Interest-bearing balances(2) ............................................................ | 0071 46,521 | 1.b.
2. Securities: | ////////////////// |
a. Held-to-maturity securities (from Schedule RC-B, column A) .............................. | 1754 257,441 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ............................ | 1773 7,250,067 | 2.b.
3. Federal funds sold and securities purchased under agreements to resell in domestic offices | ////////////////// |
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | ////////////////// |
a. Federal funds sold ...................................................................... | 0276 17,428 | 3.a.
b. Securities purchased under agreements to resell ......................................... | 0277 0 | 3.b.
4. Loans and lease financing receivables: ____________________________| ////////////////// |
a. Loans and leases, net of unearned income (from Schedule RC-C) | RCFD 2122 | 31,278,251 | ////////////////// | 4.a.
b. LESS: Allowance for loan and lease losses ................... | RCFD 3123 | 872,451 | ////////////////// | 4.b.
c. LESS: Allocated transfer risk reserve ....................... | RCFD 3128 | 0 | ////////////////// | 4.c.
____________________________
d. Loans and leases, net of unearned income, | ////////////////// |
allowance, and reserve (item 4.a minus 4.b and 4.c) ..................................... | 2125 30,405,800 | 4.d.
5. Trading assets (from schedule RC-D )........................................................ | 3545 71,354 | 5.
6. Premises and fixed assets (including capitalized leases) ................................... | 2145 534,844 | 6.
7. Other real estate owned (from Schedule RC-M) ............................................... | 2150 34,546 | 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ... | 2130 0 | 8.
9. Customers' liability to this bank on acceptances outstanding ............................... | 2155 16,634 | 9.
10. Intangible assets (from Schedule RC-M) ..................................................... | 2143 2,283,414 | 10.
11. Other assets (from Schedule RC-F) .......................................................... | 2160 3,978,638 | 11.
12. Total assets (sum of items 1 through 11) ................................................... | 2170 49,027,615 | 12.
______________________
</TABLE>
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
11
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-2
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC--Continued
___________________________
Dollar Amounts in Thousands | ///////// Bil Mil Thou |
_______________________________________________________________________________________________ _________________________
<S> <C> <C>
LIABILITIES | /////////////////////// |
13. Deposits: | /////////////////////// |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, | /////////////////////// |
part I) ............................................................................... | RCON 2200 34,110,580 | 13.a.
____________________________
(1) Noninterest-bearing(1) ................................ | RCON 6631 10,202,036 | /////////////////////// | 13.a.(1)
(2) Interest-bearing ...................................... | RCON 6636 23,908,544 | /////////////////////// | 13.a.(2)
____________________________
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, | /////////////////////// |
part II) .............................................................................. | RCFN 2200 1,745,663 | 13.b.
____________________________
(1) Noninterest-bearing ................................... | RCFN 6631 400 | /////////////////////// | 13.b.(1)
(2) Interest-bearing ...................................... | RCFN 6636 1,745,263 | /////////////////////// | 13.b.(2)
____________________________
14. Federal funds purchased and securities sold under agreements to repurchase in domestic | /////////////////////// |
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | /////////////////////// |
a. Federal funds purchased ............................................................... | RCFD 0278 4,302,800 | 14.a.
b. Securities sold under agreements to repurchase ........................................ | RCFD 0279 566,036 | 14.b.
15. a. Demand notes issued to the U.S. Treasury .............................................. | RCON 2840 14,411 | 15.a.
b. Trading liabilities (from Schedule RC-D) .............................................. | RCFD 3548 57,446 | 15.b.
16. Other borrowed money: | /////////////////////// |
a. With a remaining maturity of one year or less.......................................... | RCFD 2332 487,435 | 16.a.
b. With a remaining maturity of more than one year........................................ | RCFD 2333 893,259 | 16.b.
17. Mortgage indebtedness and obligations under capitalized leases ........................... | RCFD 2910 11,561 | 17.
18. Bank's liability on acceptances executed and outstanding ................................. | RCFD 2920 16,634 | 18.
19. Subordinated notes and debentures ........................................................ | RCFD 3200 1,213,219 | 19.
20. Other liabilities (from Schedule RC-G) ................................................... | RCFD 2930 1,251,452 | 20.
21. Total liabilities (sum of items 13 through 20) ........................................... | RCFD 2948 44,670,496 | 21.
| /////////////////////// |
22. Limited-life preferred stock and related surplus ......................................... | RCFD 3282 0 | 22.
EQUITY CAPITAL | /////////////////////// |
23. Perpetual preferred stock and related surplus ............................................ | RCFD 3838 125,000 | 23.
24. Common stock ............................................................................. | RCFD 3230 19,487 | 24.
25. Surplus (exclude all surplus related to preferred stock).................................. | RCFD 3839 2,551,927 | 25.
26. a. Undivided profits and capital reserves ................................................ | RCFD 3632 1,693,408 | 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ................ | RCFD 8434 (32,703)| 26.b.
27. Cumulative foreign currency translation adjustments ...................................... | RCFD 3284 0 | 27.
28. Total equity capital (sum of items 23 through 27) ........................................ | RCFD 3210 4,357,119 | 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, | /////////////////////// |
and 28) .................................................................................. | RCFD 3300 49,027,615 | 29.
___________________________
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external __________________
auditors as of any date during 1995 ............................................................... | RCFD 6724 N/A | M.1.
__________________
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
____________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
12
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-3
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-A--Cash and Balances Due From Depository Institutions
Exclude assets held for trading.
__________
| C405 |
_________________________________ ________
| (Column A) | (Column B) |
| Consolidated | Domestic |
| Bank | Offices |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou |
_____________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and currency and | ////////////////// | ////////////////// |
coin .................................................................... | 0022 3,402,522 | ////////////////// | 1.
a. Cash items in process of collection and unposted debits .............. | ////////////////// | 0020 2,655,163 | 1.a.
b. Currency and coin .................................................... | ////////////////// | 0080 747,539 | 1.b.
2. Balances due from depository institutions in the U.S. ................... | ////////////////// | 0082 500,301 | 2.
a. U.S. branches and agencies of foreign banks (including their IBFs) ... | 0083 0 | ////////////////// | 2.a.
b. Other commercial banks in the U.S. and other depository institutions | ////////////////// | ////////////////// |
in the U.S. (including their IBFs) ................................... | 0085 500,373 | ////////////////// | 2.b.
3. Balances due from banks in foreign countries and foreign central banks .. | ////////////////// | 0070 7,902 | 3.
a. Foreign branches of other U.S. banks ................................. | 0073 690 | ////////////////// | 3.a.
b. Other banks in foreign countries and foreign central banks ........... | 0074 7,948 | ////////////////// | 3.b.
4. Balances due from Federal Reserve Banks ................................. | 0090 265,916 | 0090 0 | 4.
5. Total (sum of items 1 through 4) (total of column A must equal | ////////////////// | ////////////////// |
Schedule RC, sum of items 1.a and 1.b) .................................. | 0010 4,177,449 | 0010 4,176,641 | 5.
___________________________________________
<CAPTION>
______________________
Memorandum Dollar Amounts in Thousands | RCON Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item 2, | ////////////////// |
column B above) .............................................................................. | 0050 453,780 | M.1.
______________________
</TABLE>
Schedule RC-B--Securities
Exclude assets held for trading.
<TABLE>
<CAPTION>
_______
| C410 |
___________________________________________________________________________ ________
| Held-to-maturity | Available-for-sale |
_________________________________________ _________________________________________
| (Column A) | (Column B) | (Column C) | (Column D) |
| Amortized Cost | Fair Value | Amortized Cost | Fair Value(1) |
____________________ ____________________ ____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________ ____________________ ____________________ ____________________ ____________________
<S> <C> <C> <C> <C> <C>
1. U.S. Treasury securities ......... | 0211 250 | 0213 250 | 1286 1,274,624 | 1287 1,252,546 | 1.
2. U.S. Government agency | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
and corporation obligations | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
(exclude mortgage-backed | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
securities): | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Issued by U.S. Govern- | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
ment agencies(2) .............. | 1289 0 | 1290 0 | 1291 0 | 1293 0 | 2.a.
b. Issued by U.S. | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
Government-sponsored | ////////////////// | ////////////////// | ////////////////// | ////////////////// |
agencies(3) ................... | 1294 0 | 1295 0 | 1297 498 | 1298 505 | 2.b.
_____________________________________________________________________________________
</TABLE>
_____________
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c, column D.
(2) Includes Small Business Administration "Guaranteed Loan Pool Certificates,"
U.S. Maritime Administration obligations, and Export-Import Bank
participation certificates.
(3) Includes obligations (other than mortgage-backed securities) issued by the
Farm Credit System, the Federal Home Loan Bank System, the Federal Home
Loan Mortgage Corporation, the Federal National Mortgage Association, the
Financing Corporation, Resolution Funding Corporation, the Student Loan
Marketing Association, and the Tennessee Valley Authority.
13
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-4
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-B--Continued
_____________________________________________________________________________________
| Held-to-maturity | Available-for-sale |
_________________________________________ _________________________________________
| (Column A) | (Column B) | (Column C) | (Column D) |
| Amortized Cost | Fair Value | Amortized Cost | Fair Value(1) |
____________________ ____________________ ____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
____________________________________ ____________________ ____________________ ____________________ ____________________
<S> <C> <C> <C> <C>
3. Securities issued by states | ////////////////// |/ //////////////// | ////////////////// | ///////////////// |
and political subdivisions | ////////////////// |////////////////// | ////////////////// | ///////////////// |
in the U.S.: | ////////////////// |////////////////// | ////////////////// | ///////////////// |
a. General obligations ......... | 1676 150,357 |1677 150,242 | 1678 0 | 1679 0 | 3.a.
b. Revenue obligations ......... | 1681 8,887 |1686 8,889 | 1690 0 | 1691 0 | 3.b.
c. Industrial development | ////////////////// |////////////////// | ////////////////// | ///////////////// |
and similiar obligations .....| 1694 0 |1695 0 | 1696 0 | 1697 0 | 3.c.
4. Mortgage-backed | ////////////////// |////////////////// | ////////////////// | ///////////////// |
securities (MBS): | ////////////////// |////////////////// | ////////////////// | ///////////////// |
a. Pass-through securities: | ////////////////// |////////////////// | ////////////////// | ///////////////// |
(1) Guaranteed by | ////////////////// |////////////////// | ////////////////// | ///////////////// |
GNMA ....................... | 1698 0 |1699 0 | 1701 861,176 | 1702 852,929 | 4.a.(1)
(2) Issued by FNMA | ////////////////// |////////////////// | ////////////////// | ///////////////// |
and FHLMC ................. | 1703 908 |1705 908 | 1706 4,854,605 | 1707 4,831,023 | 4.a.(2)
(3) Other pass-through | ////////////////// |////////////////// | ///////////////////| ///////////////// |
secruities ................. | 1709 4 |1710 4 | 1711 0 | 1713 0 | 4.a.(3)
b. Other mortgage-backed | ////////////////// |////////////////// | ////////////////// | ///////////////// |
securities (include CMO's, | ////////////////// |////////////////// | ////////////////// | ///////////////// |
REMICs, and stripped | ////////////////// |////////////////// | ////////////////// | ///////////////// |
MBS): | ////////////////// |////////////////// | ////////////////// | ///////////////// |
(1) Issued or guaranteed | ////////////////// |////////////////// | ////////////////// | ///////////////// |
by FNMA, FHLMC, | ////////////////// |////////////////// | ////////////////// | ///////////////// |
or GNMA ............... | 1714 0 |1715 0 | 1716 0 | 1717 0 | 4.b.(1)
(2) Collateralized | ////////////////// |////////////////// | ////////////////// | ///////////////// |
by MBS issued or | ////////////////// |////////////////// | ////////////////// | ///////////////// |
guaranteed by FNMA, | ////////////////// |////////////////// | ////////////////// | ///////////////// |
FHLMC, or GNMA ........ | 1718 0 |1719 0 | 1731 0 | 1732 0 | 4.b.(2)
(3) All other mortgage- | ////////////////// |////////////////// | ////////////////// | //////////////// |
backed securities ..... | 1733 0 |1734 0 | 1735 518 | 1736 518 | 4.b.(3)
5. Other debt securities: | ////////////////// |////////////////// | ////////////////// | ///////////////// |
a. Other domestic debt | ////////////////// |////////////////// | ////////////////// | ///////////////// |
securities.................. | 1737 0 |1738 0 | 1739 817 | 1741 812 | 5.a.
b. Foreign debt | ////////////////// |////////////////// | ////////////////// | ///////////////// |
securities ................. | 1742 97,035 |1743 78,878 | 1744 0 | 1746 0 | 5.b.
6. Equity securities: | ////////////////// |////////////////// | ////////////////// | ///////////////// |
a. Investments in mutual | ////////////////// |////////////////// | ////////////////// | ///////////////// |
funds ...................... | ////////////////// |////////////////// | 1747 0 | 1748 0 | 6.a.
b. Other equity securities | ////////////////// |////////////////// | ////////////////// | ///////////////// |
with readily determin- | ////////////////// |////////////////// | ////////////////// | ///////////////// |
able fair values ........... | ////////////////// |////////////////// | 1749 0 | 1751 0 | 6.b.
c. All other equity | ////////////////// |////////////////// | ////////////////// | ///////////////// |
securities (1) ............. | ////////////////// |////////////////// | 1752 311,734 | 1753 311,734 | 6.c.
7. Total (sum of items 1 | ////////////////// |////////////////// | ////////////////// | ///////////////// |
through 6) (total of | ////////////////// |////////////////// | ////////////////// | ///////////////// |
column A must equal | ////////////////// |////////////////// | ////////////////// | ///////////////// |
Schedule RC, item 2.a) | ////////////////// |////////////////// | ////////////////// | ///////////////// |
(total of column D must | ////////////////// |////////////////// | ////////////////// | ///////////////// |
equal Schedule RC, | ////////////////// |////////////////// | ////////////////// | ///////////////// |
item 2.b) ..................... | 1754 257,441 | 1771 239,171 | 1772 7,303,972 | 1773 7,250,067 | 7.
|__________________________________________________________________________________|
</TABLE>
____________
1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c, column D.
14
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-5
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-B--Continued
<CAPTION>
___________
Memoranda | C412 |
___________ _________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Pledged securities(2) ......................................................................... | 0416 2,308,912 | M.1.
2. Maturity and repricing data for debt securities(2),(3),(4) (excluding those in | ////////////////// |
nonaccrual status): | ////////////////// |
a. Fixed rate debt securities with a remaining maturity of: | ////////////////// |
(1) Three months or less ................................................................... | 0343 72,490 | M.2.a.(1)
(2) Over three months through 12 months .................................................... | 0344 77,125 | M.2.a.(2)
(3) Over one year through five years ....................................................... | 0345 2,734,577 | M.2.a.(3)
(4) Over five years ........................................................................ | 0346 2,925,207 | M.2.a.(4)
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1) through 2.a.(4)) ..... | 0347 5,809,399 | M.2.a.(5)
b. Floating rate debt securities with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently ........................................................... | 4544 531,365 | M.2.b.(1)
(2) Annually or more frequently, but less frequently than quarterly ........................ | 4545 855,010 | M.2.b.(2)
(3) Every five years or more frequently, but less frequently than annually ................. | 4551 0 | M.2.b.(3)
(4) Less frequently than every five years .................................................. | 4552 0 | M.2.b.(4)
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1) through 2.b.(4)) .. | 4553 1,386,375 | M.2.b.(5)
c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must equal total debt | ////////////////// |
securities from Schedule RC-B, sum of items 1 through 5, columns A and D, minus nonaccrual | ////////////////// |
debt securities included in Schedule RC-N, item 9, column C) ............................... | 0393 7,195,774 | M.2.c.
3. Not applicable | ////////////////// |
4. Held-to-maturity debt securities restructured and in compliance with modified terms (included | ////////////////// |
in Schedule RC-B, items 3 through 5, column A, above) ......................................... | 5365 0 | M.4.
5. Not applicable | ////////////////// |
6. Floating rate debt securities with a remaining maturity of one year or less(2),(4) (included in | ////////////////// |
Memorandum items 2.b(1) through 2.b.(4) above)................................................. | 5519 3,700 | M.6.
7. Amortized cost of held-to-maturity securities sold or transferred to available-for-sale or | ////////////////// |
trading securities during the calendar year-to-date (report the amortized cost at date of sale | ////////////////// |
or transfer ................................................................................... | 1778 0 | m.7.
8. High-risk mortgage securities (included in the held-to-maturity and available-for-sale | ////////////////// |
accounts in Schedule RC-B, item 4.b): | ////////////////// |
a. Amortized cost ............................................................................. | 8780 0 | M.8.a.
b. Fair Value ................................................................................. | 8781 0 | M.8.b.
9. Structured notes (included in the held-to-maturity and available-for-sale accounts in | ////////////////// |
Schedule RC-B, items 2, 3, and 5): | ////////////////// |
a. Amortized cost ............................................................................. | 8782 0 | M.9.a.
b. Fair Value ................................................................................. | 8783 0 | M.9.b.
----------------------
</TABLE>
____________
(2) Includes held-to-maturity securities at amortized cost and
available-for-sale securities at fair value.
(3) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
(4) Memorandum items 2 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
15
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 6/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-6
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
Schedule RC-C--Loans and Lease Financing Receivables
Part I. Loans and Leases
_________
Do not deduct the allowance for loan and lease losses from amounts | C415 |
reported in this schedule. Report total loans and leases, net of unearned _________________________________|________|
income. Exclude assets held for trading. | (Column A) | (Column B) |
| Consolidated | Domestic |
| Bank | Offices |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou |
_____________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
1. Loans secured by real estate ........................................... | 1410 11,754,916 | ////////////////// | 1.
a. Construction and land development ................................... | ////////////////// | 1415 433,880 | 1.a.
b. Secured by farmland (including farm residential and other | ////////////////// | ////////////////// |
improvements) ....................................................... | ////////////////// | 1420 2,172 | 1.b
c. Secured by 1-4 family residential properties: | ////////////////// | ////////////////// |
(1) Revolving, open-end loans secured by 1-4 family residential | ////////////////// | ////////////////// |
properties and extended under lines of credit ................... | ////////////////// | 1797 2,022,596 | 1.c.(1)
(2) All other loans secured by 1-4 family residential properties: | ////////////////// | ////////////////// |
(a) Secured by first liens ...................................... | ////////////////// | 5367 4,418,239 | 1.c.(2)(a)
(b) Secured by junior liens ..................................... | ////////////////// | 5368 492,952 | 1.c.(2)(b)
d. Secured by multifamily (5 or more) residential properties ........... | ////////////////// | 1460 559,373 | 1.d.
e. Secured by nonfarm nonresidential properties ........................ | ////////////////// | 1480 3,825,704 | 1.e.
2. Loans to depository institutions: | ////////////////// | ////////////////// |
a. To commercial banks in the U.S. ..................................... | ////////////////// | 1505 143,682 | 2.a.
(1) To U.S. branches and agencies of foreign banks .................. | 1506 0 | ////////////////// | 2.a.(1)
(2) To other commercial banks in the U.S. ........................... | 1507 143,682 | ////////////////// | 2.a.(2)
b. To other depository institutions in the U.S. ........................ | 1517 0 | 1517 12,345 | 2.b.
c. To banks in foreign countries ....................................... | ////////////////// | 1510 672 | 2.c.
(1) To foreign branches of other U.S. banks ......................... | 1513 149 | ////////////////// | 2.c.(1)
(2) To other banks in foreign countries ............................. | 1516 523 | ////////////////// | 2.c.(2)
3. Loans to finance agricultural production and other loans to farmers .... | 1590 5,889 | 1590 5,889 | 3.
4. Commercial and industrial loans: | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ....................................... | 1763 12,446,547 | 1763 12,402,858 | 4.a.
b. To non-U.S. addressees (domicile) ................................... | 1764 83,521 | 1764 54,074 | 4.b.
5. Acceptances of other banks: | ////////////////// | ////////////////// |
a. Of U.S. banks ....................................................... | 1756 0 | 1756 0 | 5.a.
b. Of foreign banks .................................................... | 1757 0 | 1757 0 | 5.b.
6. Loans to individuals for household, family, and other personal | ////////////////// | ////////////////// |
expenditures (i.e., consumer loans) (includes purchased paper) ......... | ////////////////// | 1975 2,217,352 | 6.
a. Credit cards and related plans (includes check credit and other | ////////////////// | ////////////////// |
revolving credit plans) ............................................. | 2008 161,652 | ////////////////// | 6.a.
b. Other (includes single payment, installment, and all student loans).. | 2011 2,055,700 | ////////////////// | 6.b.
7. Loans to foreign governments and official institutions (including | ////////////////// | ////////////////// |
foreign central banks) ................................................. | 2081 0 | 2081 0 | 7.
8. Obligations (other than securities and leases) of states and political | ////////////////// | ////////////////// |
subdivisions in the U.S. (includes nonrated industrial development | ////////////////// | ////////////////// |
obligations) ........................................................... | 2107 167,100 | 2107 167,100 | 8.
9. Other loans ............................................................ | 1563 2,146,172 | ////////////////// | 9.
a. Loans for purchasing or carrying securities (secured and unsecured).. | ////////////////// | 1545 156,275 | 9.a.
b. All other loans (exclude consumer loans) ............................ | ////////////////// | 1564 1,989,897 | 9.b.
10. Lease financing receivables (net of unearned income) ................... | ////////////////// | 2165 2,300,055 | 10.
a. Of U.S. addressees (domicile) ....................................... | 2182 2,300,055 | ////////////////// | 10.a.
b. Of non-U.S. addressees (domicile) ................................... | 2183 0 | ////////////////// | 10.b.
11. LESS: Any unearned income on loans reflected in items 1-9 above ........ | 2123 0 | 2123 0 | 11.
12. Total loans and leases, net of unearned income (sum of items 1 through | ////////////////// | ////////////////// |
10 minus item 11) (total of column A must equal Schedule RC, item 4.a).. | 2122 31,278,251 | 2122 31,205,115 | 12.
___________________________________________
</TABLE>
16
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page: RC-7
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-C--Continued
Part I. Continued
___________________________________________
| (Column A) | (Column B) |
| Consolidated | Domestic |
Memoranda | Bank | Offices |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCON Bil Mil Thou |
_____________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
1. Commercial paper included in Schedule RC-C, part I, above .............. | 1496 0 | 1496 0 | M.1.
2. Loans and leases restructured and in compliance with modified terms | ////////////////// | ////////////////// |
(included in Schedule RC-C, part I, above and not reported as past due | ////////////////// | ////////////////// |
or nonaccrual in Schedule RC-N, Memorandum item 1): | ////////////////// | ////////////////// |
a. Loans secured by real estate: | ////////////////// | ////////////////// |
(1) To U.S. addressees (domicile) ................................... | 1687 511 | M.2.a.(1)
(2) To non-U.S. addressees (domicile) ............................... | 1689 0 | M.2.a.(2)
b. All other loans and all lease financing receivables (exclude loans | ////////////////// |
to individuals for household, family, and other personal expenditures)| 8691 0 | M.2.b.
c. Commercial and industrial loans to and lease financing receivables | ////////////////// |
of non-U.S. addressees (domicile) included in Memorandum item 2.b | ////////////////// |
above ............................................................... | 8692 0 | M.2.c.
3. Maturity and repricing data for loans and leases(1) (excluding those | ////////////////// |
in nonaccrual status): | ////////////////// |
a. Fixed rate loans and leases with a remaining maturity of: | ////////////////// |
(1) Three months or less ............................................ | 0348 10,215,575 | M.3.a.(1)
(2) Over three months through 12 months ............................. | 0349 369,421 | M.3.a.(2)
(3) Over one year through five years ................................ | 0356 3,479,742 | M.3.a.(3)
(4) Over five years ................................................. | 0357 5,791,166 | M.3.a.(4)
(5) Total fixed rate loans and leases (sum of | ////////////////// |
Memorandum items 3.a.(1) through 3.a.(4)) ....................... | 0358 19,855,904 | M.3.a.(5)
b. Floating rate loans with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently .................................... | 4554 8,960,876 | M.3.b.(1)
(2) Annually or more frequently, but less frequently than quarterly . | 4555 1,848,295 | M.3.b.(2)
(3) Every five years or more frequently, but less frequently than | ////////////////// |
annually ........................................................ | 4561 250,031 | M.3.b.(3)
(4) Less frequently than every five years ........................... | 4564 12,721 | M.3.b.(4)
(5) Total floating rate loans (sum of Memorandum items 3.b.(1) | ////////////////// |
through 3.b.(4)) ................................................ | 4567 11,071,923 | M.3.b.(5)
c. Total loans and leases (sum of Memorandum items 3.a.(5) and 3.b.(5)) | ////////////////// |
(must equal the sum of total loans and leases, net, from | ////////////////// |
Schedule RC-C, part I, item 12, plus unearned income from | ////////////////// |
Schedule RC-C, part I, item 11, minus total nonaccrual loans and | ////////////////// |
leases from Schedule RC-N, sum of items 1 through 8, column C) ...... | 1479 30,927,827 | M.3.c.
d. FLOATING RATE LOANS WITH A REMAINING MATURITY OF ONE YEAR OR LESS | ////////////////// |
(INCLUDED IN MEMORANDUM ITEMS 3.b.(1) THROUGH 3.b.(4) ABOVE)......... | A246 1,543,411 | M.3.d.
4. Loans to finance commercial real estate, construction, and land | ////////////////// |
development activities (NOT SECURED BY REAL ESTATE) included in | ////////////////// |
Schedule RC-C, part I, items 4 and 9, column A, page RC-6(2) ........... | 2746 271,706 | M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, | ////////////////// |
above .................................................................. | 5369 0 | M.5.
| ////////////////// |_____________________
6. Adjustable rate closed-end loans secured by first liens on 1-4 family | ////////////////// | RCON Bil Mil Thou |
residential properties (included in Schedule RC-C, part I, item | ////////////////// | ___________________|
1.c.(2)(a), column B, page RC-6) ....................................... | ////////////////// | 5370 1.655.898 | M.6.
|_________________________________________|
</TABLE>
_____________________________
(1) Memorandum item 3 is not applicable to savings banks that must complete
supplememtal Schedule RC-J.
(2) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, item 1, column A.
17
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 6/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-7a
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<S> <C>
Schedule RC-C--Continued
Part II. Loans to Small Businesses and Small Farms
Schedule RC-C, Part II is to be reported only with the June Report of Condition.
Report the number and amount currently outstanding as of June 30 of business loans with "original amounts" of $1,000,000 or less
and farm loans with "original amounts" of $500,000 or less. The following guidelines should be used to determine the "original
amount" of a loan: (1) For loans drawn down under lines of credit or loan commitments, the "original amount" of the loan is the
size of the line of credit or loan commitment when the line of credit or loan commitment was most recently approved, extended, or
renewed prior to the report date. However, if the amount currently outstanding as of the report date exceeds this size, the
"original amount" is the amount currently outstanding on the report date. (2) For loan participations and syndications, the
"original amount" of the loan participation or syndication is the entire amount of the credit originated by the lead lender.
(3) For all other loans, the "original amount" is the total amount of the loan at origination or the amount currently
outstanding as of the report date, whichever is larger.
Loans to Small Businesses
</TABLE>
<TABLE>
<S> <C>
1. Indicate in the appropriate box at the right whether all or substantially all of the dollar volume of your
bank's "Loans secured by nonfarm nonresidential properties" in domestic offices reported in Schedule RC-C,
part I, item 1.e, column B, and all or substantially all of the dollar volume of your bank's
"Commercial and industrial loans to U.S. addressees" in domestic offices reported in Schedule RC-C, __________
part I, item 4.a, column B, have original amounts of $100,000 or less (If your bank has no loans ________| C415 |
outstanding in both of these two loan categories, place an "X" in the box marked "NO" and go to | RCON YES NO|
Item 5; otherwise, see instructions for further information.).................................. | 6999 | |///| x | 1.
___________________
If YES, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5.
If NO and your bank has loans outstanding in either loan category, skip items 2.a and 2.b,
complete items 3 and 4 below, and go to item 5. _____________________
| Number of Loans |
2. Report the total number of loans currently outstanding for each of the |____________________|
following Schedule RC-C, part I, loan categories: | RCON |/////////// |
a. "Loans secured by nonfarm nonresidential properties" in domestic | ////////////////// |
offices reported in Schedule RC-C, part I, item 1.e, column B....... | 5562 N/A | 2.a.
b. "Commercial and industrial loans to U.S. addressees" in domestic | ////////////////// |
offices reported in Schedule RC-C, part I, item 4.a, column B ...... | 5563 N/A | 2.b.
______________________
</TABLE>
<TABLE>
<CAPTION>
___________________________________________
| (Column A) | (Column B) |
| | Amount |
| | Currently |
| Number of Loans | Outstanding |
____________________ ____________________
Dollar Amounts in Thousands | RCON | ///////////| RCON Bil Mil Thou |
_____________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
3. Number and amount currently outstanding of "Loans secured by nonfarm | /////////////////////////////////////// | 1.
nonresidential properties" in domestic offices reported in Schedule RC-C | /////////////////////////////////////// | 1.a.
part I item 1.e, column B (sum of items 3.a through 3.c must be less | /////////////////////////////////////// |
or equal to Schedule RC-C, part I, item 1.e, column B): | /////////////////////////////////////// | 1.b
a. With original amounts of $100,000 or less ........................... | 5564 1,988 | 5565 76,370 | 3.a.
b. With original amounts of more than $100,000 through $250,000 ........ | 5566 2,805 | 5567 332,639 | 3.b.
c. With original amounts of more than $250,000 through $1,000,000 ...... | 5568 2,736 | 5569 952,476 | 3.c.
4. Number and amount currently outstanding of "Commercial and industrial | /////////////////////////////////////// |
loans to U.S. addressees" in domestic offices reported in Schedule RC-C, | /////////////////////////////////////// |
part I, item 4.a, column B (sum of items 4.a through 4.c must be less | /////////////////////////////////////// |
than or equal to Schedule RC-C, part I, item 4.a, column B): | /////////////////////////////////////// |
a. With original amounts of $100,000 or less ........................... | 5570 11,433 | 5571 337,759 | 4.a.
b. With original amounts of more than $100,000 through $250,000 ........ | 5572 2,127 | 5573 228,713 | 4.b.
c. With original amounts of more than $250,000 through $1,000,000 ...... | 5574 1,968 | 5575 601,126 | 4.c.
___________________________________________
</TABLE>
17a
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 6/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-7b
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
Schedule RC-C -- Continued
Part II. Continued
Agricultural Loans to Small Farms
<TABLE>
<S> <C> <C>
5. Indicate in the appropriate box at the right whether all or substantially all of the
dollar volume of your bank's "Loans secured by farmland (including farm residential
and other improvements)" in domestic offices reported in Schedule RC-C, part I, item
1.b, column B, and all or substantially all of the dollar volume of your bank's
"Loans to finance agricultural production and other loans to farmers" in domestic
offices reported in Schedule RC-C, part I, item 3, column B, have original amounts
of $100,000 or less (If your bank has no loans outstanding in both of these two YES NO
loan categories, place an "X" in the box marked "NO" and do not complete items 7 _______________________
and 8; otherwise, see instructions for further information.)................................... | 6860 | | /// | X | 5.
|_____________________|
If YES, complete items 6.a and 6.b below and do not complete items 7 and 8.
If NO and your bank has loans outstanding in either loan category, skip items 6.a and 6.b
and complete items 7 and 8 below.
</TABLE>
<TABLE>
<S> <C>
______________________
| Number of Loans |
6. Report the total number of loans currently outstanding for each of the |____________________|
following Schedule RC-C, part I, loan categories: | RCON |//////////// |
a. "Loans secured by farmland (including farm residential and other |______| |
improvements)" in domestic offices reported in Schedule RC-C, part I, | ////////////////// |
item 1.b, column B........................................................ | 5576 N/A | 6.a.
b. "Loans to finance agricultural production and other loans to farmers" in | ////////////////// |
domestic offices reported in Schedule RC-C, part I, item 3, column B...... | 5577 N/A | 6.b.
|____________________|
</TABLE>
<TABLE>
<S> <C> <C>
_____________________________________________
| (Column A) | (Column B) |
| | Amount |
| | Currently |
| Number of Loans | Outstanding |
|_____________________|______________________|
Dollar Amounts in Thousands | RCON |/////////////| RCON Bil Mil Thou |
________________________________________________________________________________| ______| |_____________________ |
7. Number and amount currently outstanding of "Loans secured by farmland | ////////////////////////////////////////// |
(including farm residential and other improvements)" in domestic offices | ////////////////////////////////////////// |
reported in Schedule RC-C, part I, item 1.b, column B (sum of items 7.a | ////////////////////////////////////////// |
through 7.c must be less than or equal to Schedule RC-C, part I, item 1.b, | ////////////////////////////////////////// |
column B): | ////////////////////////////////////////// |
a. With original amounts of $100,000 or less............................... | 5578 18 | 5579 292 | 7.a.
b. With original amounts of more than $100,000 through $250,000............ | 5580 8 | 5581 850 | 7.b.
c. With original amounts of more than $250,000 through $500,000............ | 5582 4 | 5583 1,030 | 7.c.
8. Number and amount currently outstanding of "Loans to finance agricultural | ////////////////////////////////////////// |
production and other loans to farmers" in domestic offices reported in | ////////////////////////////////////////// |
Schedule RC-C, part I, item 3, column B (sum of items 8.a through 8.c | ////////////////////////////////////////// |
must be less than or equal to Schedule RC-C, part I, item 3, column B): | ////////////////////////////////////////// |
a. With original amounts of $100,000 or less............................... | 5584 46 | 5585 992 | 8.a.
b. With original amounts of more than $100,000 through $250,000............ | 5586 17 | 5587 1,877 | 8.b.
c. With original amounts of more than $250,000 through $500,000............ | 5588 4 | 5589 1,054 | 8.c.
|_____________________|______________________|
</TABLE>
17b
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-8
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
Schedule RC-D--Trading Assets and Liabilities
Schedule RC-D is to be completed only by banks with $1 billion or more in total assets or with $2 billion or more in par/notional
amount of off-balance sheet derivative contracts (as reported in Schedule RC-L, items 14.a through 14.e, columns A through D).
__________
| C420 |
__________________________
Dollar Amounts in Thousands | ////////// Bil Mil Thou|
__________________________________________________________________________________________________| ________________________|
<S> <C> <C>
ASSETS | /////////////////////// |
1. U.S. Treasury securities in domestic offices ................................................ | RCON 3531 0 | 1.
2. U.S. Government agency and corporation obligations in domestic offices (exclude mortgage- | /////////////////////// |
backed securities) .......................................................................... | RCON 3532 0 | 2.
3. Securities issued by states and political subdivisions in the U.S. in domestic offices ...... | RCON 3533 0 | 3.
4. Mortgage-backed securities (MBS) in domestic offices: | /////////////////////// |
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA ..................... | RCON 3534 0 | 4.a.
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA | /////////////////////// |
(include CMOs, REMICs, and stripped MBS) ................................................. | RCON 3535 0 | 4.b.
c. All other mortgage-backed securities ......................................................| RCON 3536 0 | 4.c.
5. Other debt securities in domestic offices ................................................... | RCON 3537 0 | 5.
6. Certificates of deposit in domestic offices ................................................. | RCON 3538 0 | 6.
7. Commercial paper in domestic offices ........................................................ | RCON 3539 0 | 7.
8. Bankers acceptances in domestic offices ..................................................... | RCON 3540 0 | 8.
9. Other trading assets in domestic offices .................................................... | RCON 3541 0 | 9.
10. Trading assets in foreign offices ........................................................... | RCFN 3542 0 | 10.
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and equity | /////////////////////// |
contracts: | /////////////////////// |
a. In domestic offices ...................................................................... | RCON 3543 66,696 | 11.a.
b. In foreign offices ....................................................................... | RCFN 3544 4,658 | 11.b.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5) ........... | RCFD 3545 71,354 | 12.
<CAPTION>
___________________________
___________________________
| ///////// Bil Mil Thou |
LIABILITIES | ________________________|_
<S> <C> <C>
13. Liability for short positions ............................................................... | RCFD 3546 0 | 13.
14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and equity | /////////////////////// |
contracts ................................................................................... | RCFD 3547 57,446 | 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item 15.b) ...... | RCFD 3548 57,446 | 15.
___________________________
</TABLE>
18
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-9
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-E--Deposit Liabilities
Part I. Deposits in Domestic Offices
__________
| C425 |
______________________________________________________ ________
| | Nontransaction |
| Transaction Accounts | Accounts |
_________________________________________ ____________________
| (Column A) | (Column B) | (Column C) |
| Total transaction | Memo: Total | Total |
| accounts (including| demand deposits | nontransaction |
| total demand | (included in | accounts |
| deposits) | column A) | (including MMDAs) |
____________________ ____________________ ____________________
Dollar Amounts in Thousands | RCON Bil Mil Thou | RCON Bil Mil Thou | RCON Bil Mil Thou |
__________________________________________________________ ____________________ ____________________ ____________________
<S> <C> <C> <C> <C>
Deposits of: | ////////////////// | ////////////////// | ////////////////// |
1. Individuals, partnerships, and corporations .......... | 2201 8,615,650 | 2240 8,158,203 | 2346 22,594,478 | 1.
2. U.S. Government ...................................... | 2202 58,650 | 2280 58,605 | 2520 42,512 | 2.
3. States and political subdivisions in the U.S. ........ | 2203 818,151 | 2290 706,072 | 2530 702,686 | 3.
4. Commercial banks in the U.S. ......................... | 2206 836,005 | 2310 836,005 | 2550 771 | 4.
5. Other depository institutions in the U.S. ............ | 2207 221,571 | 2312 221,571 | 2349 2,968 | 5.
6. Banks in foreign countries ........................... | 2213 18,445 | 2320 18,445 | 2236 0 | 6.
7. Foreign governments and official institutions | ////////////////// | ////////////////// | ////////////////// |
(including foreign central banks) .................... | 2216 108 | 2300 108 | 2377 0 | 7.
8. Certified and official checks ........................ | 2330 198,585 | 2330 198,585 | ////////////////// | 8.
9. Total (sum of items 1 through 8) (sum of | ////////////////// | ////////////////// | ////////////////// |
columns A and C must equal Schedule RC, | ////////////////// | ////////////////// | ////////////////// |
item 13.a) ........................................... | 2215 10,767,165 | 2210 10,197,594 | 2385 23,343,415 | 9.
________________________________________________________________
</TABLE>
<TABLE>
<CAPTION>
______________________
Memoranda Dollar Amounts in Thousands | RCON Bil Mil Thou |
____________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Selected components of total deposits (i.e., sum of item 9, columns A and C): | ////////////////// |
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts ......................... | 6835 2,735,425 | M.1.a.
b. Total brokered deposits ..................................................................... | 2365 1,636,611 | M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above): | ////////////////// |
(1) Issued in denominations of less than $100,000 ........................................... | 2343 2,350 | M.1.c.(1)
(2) Issued EITHER in denominations of $100,000 OR in denominations greater than $100,000 | ////////////////// |
and participated out by the broker in shares of $100,000 or less ........................ | 2344 1,634,261 | M.1.c.(2)
d. MATURITY DATA FOR BROKERED DEPOSITS: | ////////////////// |
(1) BROKERED DEPOSITS ISSUED IN DENOMINATIONS OF LESS THAN $100,000 WITH A REMAINING | ////////////////// |
MATURITY OF ONE YEAR OR LESS (INCLUDED IN MEMORANDUM ITEM 1.c.(1) ABOVE)................. | A243 171 | M.1.d.(1)
(2) BROKERED DEPOSITS ISSUED IN DENOMINATIONS OF $100,000 OR MORE WITH A REMAINING | ////////////////// |
MATURITY OF ONE YEAR OR LESS (INCLUDED IN MEMORANDUM ITEM 1.b ABOVE)..................... | A244 509,265 | M.1.d.(2)
e. Preferred deposits (uninsured deposits of states and political subdivisions in the U.S. | ////////////////// |
reported in item 3 above which are secured or collateralized as required under state law) ... | 5590 457,587 | M.1.e.
2. Components of total nontransaction accounts (sum of Memoranda items 2.a through 2.d must | ////////////////// |
equal item 9, column C above): | ////////////////// |
a. Savings deposits: | ////////////////// |
(1) Money market deposit accounts (MMDAs) ................................................... | 6810 10,738,339 | M.2.a.(1)
(2) Other savings deposits (excludes MMDAs) ................................................. | 0352 2,655,659 | M.2.a.(2)
b. Total time deposits of less than $100,000 ................................................... | 6648 7,247,099 | M.2.b.
c. Time certificates of deposit of $100,000 or more ............................................ | 6645 2,702,318 | M.2.c.
d. Open-account time deposits of $100,000 or more .............................................. | 6646 0 | M.2.d.
3. All NOW accounts (included in column A above) .................................................. | 2398 569,571 | M.3.
4. Not applicable
______________________
</TABLE>
19
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-10
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
Schedule RC-E--Continued
Part I. Continued
Memoranda (continued)
_________________________________________________________________________________________________________________________________
</TABLE>
<TABLE>
<CAPTION>
______________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
<S> <C> <C>
5. Maturity and repricing data for time deposits of less than $100,000 (sum of | ////////////////// |
Memorandum items 5.a.(1) through 5.b.(3) must equal Memorandum item 2.b above):(1) | ////////////////// |
a. Fixed rate time deposits of less than $100,000 with a remaining maturity of: | ////////////////// |
(1) Three months or less.................................................................... | A225 1,684,248 | M.5.a.(1)
(2) Over three months through 12 months..................................................... | A226 3,493,722 | M.5.a.(2)
(3) Over one year........................................................................... | A227 2,002,999 | M.5.a.(3)
b. Floating rate time deposits of less than $100,000 with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently............................................................ | A228 66,130 | M.5.b.(1)
(2) Annually or more frequently, but less frequently than quarterly......................... | A229 0 | M.5.b.(2)
(3) Less frequently than annually........................................................... | A230 0 | M.5.b.(3)
c. Floating rate time deposits of less than $100,000 with a remaining maturity of | ////////////////// |
one year or less (included in Memorandum items 5.b.(1) through 5.b.(3) above)............... | A231 45,084 | M.5.c.
6. Maturity and repricing data for time deposits of $100,000 or more (i.e., time certificates | ////////////////// |
of deposit of $100,000 or more and open-account time deposits of $100,000 or more) | ////////////////// |
(sum of Memorandum items 6.a.(1) through 6.b.(4) must equal the sum of Memorandum | ////////////////// |
items 2.c and 2.d above):(1) | ////////////////// |
a. Fixed rate time deposits of $100,000 or more with a remaining maturity of: | ////////////////// |
(1) Three months or less ................................................................... | A232 534,657 | M.6.a.(1)
(2) Over three months through 12 months .................................................... | A233 754,429 | M.6.a.(2)
(3) Over one year through five years ....................................................... | A234 1,282,541 | M.6.a.(3)
(4) Over five years ........................................................................ | A235 36,761 | M.6.a.(4)
b. Floating rate time deposits of $100,000 or more with a repricing frequency of: | ////////////////// |
(1) Quarterly or more frequently ........................................................... | A236 31,182 | M.6.b.(1)
(2) Annually or more frequently, but less frequently than quarterly ........................ | A237 37,950 | M.6.b.(2)
(3) Every five years or more frequently, but less frequently than annually ................. | A238 24,798 | M.6.b.(3)
(4) Less frequently than every five years .................................................. | A239 0 | M.6.b.(4)
c. Floating rate time deposits of $100,000 or more with a remaining maturity of | ////////////////// |
one year or less (included in Memorandum items 6.b.(1) through 6.b.(4) above)............... | A240 19,186 | M.6.c.
______________________
</TABLE>
_______________
(1) Memorandum items 5 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
20
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 6/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-11
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-E--Continued
Part II. Deposits in Foreign Offices (including Edge and
Agreement subsidiaries and IBFs)
______________________
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
<S> <C> <C>
Deposits of: | ////////////////// |
1. Individuals, partnerships, and corporations ................................................... | 2621 1,730,162 | 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks) ................................ | 2623 0 | 2.
3. Foreign banks (including U.S. branches and agencies of foreign banks, including their IBFs).... | 2625 0 | 3.
4. Foreign governments and official institutions (including foreign central banks) ............... | 2650 0 | 4.
5. Certified and official checks ................................................................. | 2330 0 | 5.
6. All other deposits ............................................................................ | 2668 15,501 | 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b) .......................... | 2200 1,745,663 | 7.
Memorandum
Dollar Amounts in Thousands |RCFN Bil Mil Thou |
________________________________________________________________________________________________________________________
1. Time deposits with a remaining maturity of one year or less (included in Part II, item 7 above) |A245 1,745,263 | M.1.
______________________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-F--Other Assets
__________
| C430 |
_________________ ________
Dollar Amounts in Thousands | ////////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
<S> <C> <C>
1. Income earned, not collected on loans ........................................................ | RCFD 2164 167,538 | 1.
2. Net deferred tax assets(1) ................................................................... | RCFD 2148 0 | 2.
3. Excess residential mortgage servicing fees receivable ........................................ | RCFD 5371 134,288 | 3.
4. Other (itemize and describe amounts that exceed 25% of this item)............................. | RCFD 2168 3,676,812 | 4.
_____________ ___________________________
a. | TEXT 3549 | Mortgages held for Resale | RCFD 3549 | 1,858,683 | /////////////////////// | 4.a.
_________________________________________________________________| | | |
___________
b. | TEXT 3550 |____________________________________________________| RCFD 3550 | | /////////////////////// | 4.b.
___________
c. | TEXT 3551 |____________________________________________________| RCFD 3551 | | /////////////////////// | 4.c.
_____________
___________________________
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11) ........................... | RCFD 2160 3,978,638 | 5.
___________________________
<CAPTION>
Memorandum ___________________________
Dollar Amounts in Thousands | ////////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
<S> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes ............................... | RCFD 5610 0 | M.1.
___________________________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-G--Other Liabilities
__________
| C435 |
_________________ ________
Dollar Amounts in Thousands | ////////// Bil Mil Thou |
__________________________________________________________________________________________________ _________________________
<S> <C> <C>
1. a. Interest accrued and unpaid on deposits in domestic offices(2) ............................ | RCON 3645 58,011 | 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable) ................. | RCFD 3646 594,954 | 1.b.
2. Net deferred tax liabilities(1) .............................................................. | RCFD 3049 119,644 | 2.
3. Minority interest in consolidated subsidiaries ............................................... | RCFD 3000 0 | 3.
4. Other (itemize and describe amounts that exceed 25% of this item)............................. | RCFD 2938 478,843 | 4.
_____________ ___________________________
a. | TEXT 3552 |____________________________________________________| RCFD 3552 | | /////////////////////// | 4.a.
___________
b. | TEXT 3553 |____________________________________________________| RCFD 3553 | | /////////////////////// | 4.b.
___________
c. | TEXT 3554 |____________________________________________________| RCFD 3554 | | /////////////////////// | 4.c.
_____________
___________________________
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20) ........................... | RCFD 2930 1,251,452 | 5.
</TABLE>
____________
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) For savings banks, include "dividends" accrued and unpaid on deposits.
21
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-12
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-H--Selected Balance Sheet Items for Domestic Offices
__________
| C440 |
____________ ________
| Domestic Offices |
____________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
_____________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Customers' liability to this bank on acceptances outstanding .................................... | 2155 16,634 | 1.
2. Bank's liability on acceptances executed and outstanding ........................................ | 2920 16,634 | 2.
3. Federal funds sold and securities purchased under agreements to resell .......................... | 1350 17,428 | 3.
4. Federal funds purchased and securities sold under agreements to repurchase ...................... | 2800 4,868,836 | 4.
5. Other borrowed money ............................................................................ | 3190 1,380,694 | 5.
EITHER | ////////////////// |
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs ..................... | 2163 N/A | 6.
OR | ////////////////// |
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs ....................... | 2941 1,669,058 | 7.
| ////////////////// |
8. Total assets (excludes net due from foreign offices, Edge and Agreement subsidiaries, and IBFs) . | 2192 48,946,123 | 8.
| ////////////////// |
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement subsidiaries, and IBFs)| 3129 42,919,946 | 9.
______________________
</TABLE>
<TABLE>
<CAPTION>
Items 10-17 include held-to-maturity and available-for-sale securities in domestic offices. ______________________
| RCON Bil Mil Thou |
____________________
<S> <C> <C>
10. U.S. Treasury securities ....................................................................... | 1779 1,252,796 | 10.
11. U.S. Government agency and corporation obligations (exclude mortgage-backed | ////////////////// |
securities) .................................................................................... | 1785 505 | 11.
12. Securities issued by states and political subdivisions in the U.S. ............................. | 1786 159,244 | 12.
13. Mortgage-backed securities (MBS): | ////////////////// |
a. Pass-through securities: | ////////////////// |
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA ............................................ | 1787 5,684,860 | 13.a.(1)
(2) Other pass-through securities ........................................................... | 1869 4 | 13.a.(2)
b. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS): | ////////////////// |
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA ............................................ | 1877 0 | 13.b.(1)
(2) All other mortgage-backed securities..................................................... | 2253 518 | 13.b.(2)
14. Other domestic debt securities ................................................................. | 3159 812 | 14.
15. Foreign debt securities ........................................................................ | 3160 97,035 | 15.
16. Equity securities: | ////////////////// |
a. Investments in mutual funds ................................................................. | 3161 0 | 16.a.
b. Other equity securities with readily determinable fair values ............................... | 3162 0 | 16.b.
c. All other equity securities ................................................................. | 3169 311,734 | 16.c.
17. Total held-to-maturity and available-for-sale securities (sum of items 10 through 16) .......... | 3170 7,507,508 | 17.
______________________
</TABLE>
<TABLE>
<CAPTION>
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
______________________
Dollar Amounts in Thousands | RCON Bil Mil Thou |
_____________________________________________________________________________________________________ ____________________
<S> <C> <C>
EITHER | ////////////////// |
1. Net due from the IBF of the domestic offices of the reporting bank .............................. | 3051 0 | M.1.
OR | ////////////////// |
2. Net due to the IBF of the domestic offices of the reporting bank ................................ | 3059 N/A | M.2.
______________________
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-13
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
Schedule RC-I--Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices. __________
| C445 |
____________ ________
Dollar Amounts in Thousands | RCFN Bil Mil Thou |
_____________________________________________________________________________________________________ ____________________
1. Total IBF assets of the consolidated bank (component of Schedule RC, item 12) ................. | 2133 0 | 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C, part I, item 12, | ////////////////// |
column A) ..................................................................................... | 2076 0 | 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, item 4, column A) .... | 2077 0 | 3.
4. Total IBF liabilities (component of Schedule RC, item 21) ..................................... | 2898 0 | 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of Schedule RC-E, | ////////////////// |
part II, items 2 and 3) ....................................................................... | 2379 0 | 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5, and 6) ..... | 2381 0 | 6.
______________________
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
Schedule RC-K--Quarterly Averages (1)
__________
| C455 |
_________________ ________
Dollar Amounts in Thousands | ///////// Bil Mil Thou |
_______________________________________________________________________________________________ _________________________
ASSETS | /////////////////////// |
1. Interest-bearing balances due from depository institutions .............................. | RCFD 3381 10,737 | 1.
2. U.S. Treasury securities and U.S. Government agency and corporation obligations(2) ...... | RCFD 3382 6,349,267 | 2.
3. Securities issued by states and political subdivisions in the U.S.(2) ................... | RCFD 3383 155,938 | 3.
4. a. Other debt securities(2) ............................................................. | RCFD 3647 98,458 | 4.a.
b. Equity securities(3) (includes investments in mutual funds and Federal Reserve stock). | RCFD 3648 347,675 | 4.b.
5. Federal funds sold and securities purchased under agreements to resell in domestic | /////////////////////// |
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs ............. | RCFD 3365 812,114 | 5.
6. Loans: | ///////////////////// // |
a. Loans in domestic offices: | /////////////////////// |
(1) Total loans ...................................................................... | RCON 3360 31,884,320 | 6.a.(1)
(2) Loans secured by real estate ..................................................... | RCON 3385 14,940,513 | 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers .............. | RCON 3386 5,935 | 6.a.(3)
(4) Commercial and industrial loans .................................................. | RCON 3387 12,923,362 | 6.a.(4)
(5) Loans to individuals for household, family, and other personal expenditures ...... | RCON 3388 2,224,980 | 6.a.(5)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs ............ | RCFN 3360 70,458 | 6.b.
7. Trading assets .......................................................................... | RCFD 3401 105,824 | 7.
8. Lease financing receivables (net of unearned income) .................................... | RCFD 3484 2,231,479 | 8.
9. Total assets (4) ........................................................................ | RCFD 3368 52,282,230 | 9.
LIABILITIES | /////////////////////// |
10. Interest-bearing transaction accounts in domestic offices (NOW accounts, ATS accounts, | /////////////////////// |
and telephone and preauthorized transfer accounts) (exclude demand deposits) ............ | RCON 3485 965,535 | 10.
11. Nontransaction accounts in domestic offices: | /////////////////////// |
a. Money market deposit accounts (MMDAs) ................................................ | RCON 3486 9,210,475 | 11.a.
b. Other savings deposits ............................................................... | RCON 3487 3,907,216 | 11.b.
c. Time certificates of deposit of $100,000 or more ..................................... | RCON 3345 2,653,452 | 11.c.
d. All other time deposits .............................................................. | RCON 3469 7,513,443 | 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement subsidiaries, and IBFs.. | RCFN 3404 1,765,593 | 12.
13. Federal funds purchased and securities sold under agreements to repurchase in domestic | /////////////////////// |
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs ............. | RCFD 3353 6,363,286 | 13.
14. Other borrowed money .................................................................... | RCFD 3355 2,670,145 | 14.
___________________________
</TABLE>
_______________
(1) For all items, banks have the option of reporting either (1) an average of
daily figures for the quarter, or
(2) an average of weekly figures (i.e., the Wednesday of each week of the
quarter).
(2) Quarterly averages for all debt securities should be based on amortized
cost.
(3) Quarterly averages for all equity securities should be based on historical
cost.
(4) The quarterly average for total assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
23
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-14
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-L--Off-Balance Sheet Items
Please read carefully the instructions for the preparation of Schedule RC-L. Some of the amounts
reported in Schedule RC-L are regarded as volume indicators and not necessarily as measures of risk. __________
| C460 |
____________ ________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
____________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Unused commitments: | ////////////////// |
a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., home | ////////////////// |
equity lines ............................................................................... | 3814 1,637,875 | 1.a.
b. Credit card lines .......................................................................... | 3815 32,940 | 1.b.
c. Commercial real estate, construction, and land development: | ////////////////// |
(1) Commitments to fund loans secured by real estate ....................................... | 3816 648,369 | 1.c.(1)
(2) Commitments to fund loans not secured by real estate ................................... | 6550 383,022 | 1.c.(2)
d. Securities underwriting .................................................................... | 3817 0 | 1.d.
e. Other unused commitments ................................................................... | 3818 18,626,522 | 1.e.
2. Financial standby letters of credit and foreign office guarantees ............................. | 3819 2,337,268 | 2.
___________________________
a. Amount of financial standby letters of credit conveyed to others | RCFD 3820 | 158,029 | ////////////////// | 2.a.
___________________________
3. Performance standby letters of credit and foreign office guarantees ........................... | 3821 175,703 | 3.
a. Amount of performance standby letters of credit conveyed to | ////////////////// |
___________________________
others .......................................................... | RCFD 3822 | 12,580 | ////////////////// | 3.a.
___________________________
4. Commercial and similar letters of credit ...................................................... | 3411 176,335 | 4.
5. Participations in acceptances (as described in the instructions) conveyed to others by | ////////////////// |
the reporting bank ............................................................................ | 3428 16,524 | 5.
6. Participations in acceptances (as described in the instructions) acquired by the reporting | ////////////////// |
(nonaccepting) bank ........................................................................... | 3429 7,409 | 6.
7. Securities borrowed ........................................................................... | 3432 0 | 7.
8. Securities lent (including customers' securities lent where the customer is indemnified | ////////////////// |
against loss by the reporting bank) ........................................................... | 3433 0 | 8.
9. Loans transferred (i.e., sold or swapped) with recourse that have been treated as sold for | ////////////////// |
Call Report purposes: | ////////////////// |
a. FNMA and FHLMC residential mortgage loan pools: | ////////////////// |
(1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3650 246,244 | 9.a.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ................... | 3651 246,244 | 9.a.(2)
b. Private (nongovernment-issued or -guaranteed) residential mortgage loan pools: | ////////////////// |
(1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3652 33,550 | 9.b.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ................... | 3653 33,550 | 9.b.(2)
c. Farmer Mac agricultural mortgage loan pools: | ////////////////// |
(1) Outstanding principal balance of mortgages transferred as of the report date ........... | 3654 0 | 9.c.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ................... | 3655 0 | 9.c.(2)
d. Small business obligations transferred with recourse under Section 208 of the | ////////////////// |
Riegle Community Development and Regulatory Improvement Act of 1994: | ////////////////// |
(1) Outstanding principal balance of small business obligations transferred | ////////////////// |
as of the report date................................................................... | A249 0 | 9.d.(1)
(2) Amount of retained recourse on these obligations as of the report date.................. | A250 0 | 9.d.(2)
10. When-issued securities: | ////////////////// |
a. Gross commitments to purchase .............................................................. | 3434 0 | 10.a.
b. Gross commitments to sell .................................................................. | 3435 0 | 10.b.
11. Spot foreign exchange contracts ............................................................... | 8765 622,366 | 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet derivatives) (itemize and | ////////////////// |
describe each component of this item over 25% of Schedule RC, item 28, "Total equity capital") | 3430 0 | 12.
a. | TEXT 3555 |______________________________________________________| RCFD 3555 | | ////////////////// | 12.a.
b. | TEXT 3556 |______________________________________________________| RCFD 3556 | | ////////////////// | 12.b.
___________
c. | TEXT 3557 |______________________________________________________| RCFD 3557 | | ////////////////// | 12.c.
_____________
d. | TEXT 3558 |______________________________________________________| RCFD 3558 | | ////////////////// | 12.d.
_____________ _______________________________________________
Dollar Amounts in Thousands RCFD Bil Mil Thou
_________________________________________________________________________________________________________________________
13. All other off-balance sheet assets (exclude off-balance sheet derivatives) (itemize and | ////////////////// |
describe each component of this item over 25% of Schedule RC,item 28,"Total equity capital") | 5591 0 | 13.
_____________ __________________________
a. | TEXT 5592 |______________________________________________________| RCFD 5592 | | ////////////////// | 13.a.
___________
b. | TEXT 5593 |______________________________________________________| RCFD 5593 | | ////////////////// | 13.b.
___________
c. | TEXT 5594 |______________________________________________________| RCFD 5594 | | ////////////////// | 13.c.
_____________
d. | TEXT 5595 |______________________________________________________| RCFD 5595 | | ////////////////// | 13.d.
_____________
________________________________________________
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-15
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
Schedule RC-L -- Continued
_____________
| C461 |
_________________________________________ ____________________________|___________|
| (Column A) | (Column B) | (Column C) | (Column D) |
| Interest Rate | Foreign Exchange | Equity Derivative | Commodity and other|
| Contracts | Contracts | Contracts | Contracts |
|___________________|____________________|____________________|____________________|
Dollar Amounts in Thousands |Tril Bil Mil Thou | Tril Bil Mil Thou | Tril Bil Mil Thou | Tril Bil Mil Thou |
_______________________________________________________________________________________________________________________|
<S> <C> <C> <C> <C> <C>
| Off-balance Sheet Derivatives | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
| Position Indicators | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
____________________________________| ///////////////// | ////////////////// | ////////////////// | ////////////////// |
14. Gross amounts (e.g., notional | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
amounts) (for each column, sum of | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
items 14.a through 14.e must equal | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
sum of items 15, 16.a, and 16.b): |___________________|____________________|___________________ |____________________|
a. Futures contracts ............. | 1,229,392 | 0 | 0 | 36,486 | 14.a.
|___________________|____________________|____________________|____________________|
| RCFD 8693 | RCFD 8694 | RCFD 8695 | RCFD 8696 |
|___________________|____________________|____________________|____________________|
b. Forward contracts ............. | 2,576,500 | 1,931,682 | 0 | 21,832 | 14.b.
|___________________|____________________|____________________|____________________|
| RCFD 8697 | RCFD 8698 | RCFD 8699 | RCFD 8700 |
|___________________|____________________|____________________|____________________|
c. Exchange-traded option contracts:| ///////////////// | ////////////////// | ////////////////// | ////////////////// |
|___________________|____________________|____________________|____________________|
(1) Written options .......... | 0 | 0 | 0 | 0 | 14.c.(1)
|___________________|____________________|____________________|____________________|
| RCFD 8701 | RCFD 8702 | RCFD 8703 | RCFD 8704 |
|___________________|____________________|____________________|____________________|
(2) Purchased options ........ | 450,000 | 0 | 0 | 2,206 | 14.c.(2)
|___________________|____________________|____________________|____________________|
| RCFD 8705 | RCFD 8706 | RCFD 8707 | RCFD 8708 |
|___________________|____________________|____________________|____________________|
d. Over-the-counter option contracts: | //////////////////| ///////////////// | ///////////////// | //////////////// |
(1) Written options .......... | 1,324,980 | 3,887 | 0 | 0 | 14.d.(1)
|___________________|____________________|____________________|____________________|
| RCFD 8709 | RCFD 8710 | RCFD 8711 | RCFD 8712 |
|___________________|____________________|____________________|____________________|
(2) Purchased options ........ | 10,131,934 | 3,887 | 0 | 0 | 14.d.(2)
|___________________|____________________|____________________|____________________|
| RCFD 8713 | RCFD 8714 | RCFD 8715 | RCFD 8716 |
|___________________|____________________|____________________|____________________|
e. Swaps ............................ | 19,502,262 | 0 | 0 | 0 | 14.e.
|___________________|____________________|____________________|____________________|
| RCFD 3450 | RCFD 3826 | RCFD 8719 | RCFD 8720 |
|___________________|____________________|____________________|____________________|
15. Total gross notional amount of | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
derivative contracts held for | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
trading ......................... | 3,386,305 | 1,939,456 | 0 | 2,206 | 15.
|___________________|____________________|____________________|____________________|
| RCFD A126 | RFD A127 | RCFD 8723 | RCFD 8724 |
|___________________|____________________|____________________|____________________|
16. Total gross notional amount of | ///////////////// | //////////////// | ///////////////// | ////////////////// |
derivative contracts held for | ///////////////// | ///////////////// | ///////////////// | ////////////////// |
purposes other than trading: | ///////////////// | ///////////////// | ///////////////// | ////////////////// |
|___________________|____________________|____________________|____________________|
a. Contracts marked to market ... | 4,202,500 | 0 | 0 | 36,486 | 16.a.
|___________________|____________________|____________________|____________________|
| RCFD 8725 | RCFD 8726 | RCF 8727 | RCFD 8728 |
|___________________|____________________|____________________|____________________|
b. Contracts not marked to market | 27,626,263 | 0 | 0 | 21,832 | 16.b.
|___________________|____________________|____________________|____________________|
| RCFD 8729 | RCFD 8730 | RFD 8731 | RCFD 8732 |
|___________________|____________________|____________________|____________________|
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-16
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
Schedule RC-L -- Continued
<CAPTION>
_________________________________________ _________________________________________
| (Column A) | (Column B) | (Column C) | (Column D) |
Dollar Amounts in Thousands | Interest Rate | Foreign Exchange | Equity Derivative | Commodity and other|
___________________________________| Contracts | Contracts | Contracts | Contracts |
| Off-balance Sheet Derivatives |___________________|____________________|____________________|____________________|
| Position Indicators |RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
|_____________________________________________________________________________________________________________________|
<S> <C> <C> <C> <C> <C>
17. Gross fair values of | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
derivative contracts: | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
a. Contracts held for | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
trading: | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Gross positive | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
fair value ................... | 8733 29,782 | 8734 41,523 | 8735 0 | 8736 58 | 17.a.(1)
(2) Gross negative | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
fair value ................... | 8737 20,932 | 8738 36,511 | 8739 0 | 8740 0 | 17.a.(2)
b. Contracts held for | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
purposes other than | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
trading that are marked | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
to market: | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Gross positive | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
fair value ................... | 8741 524 | 8742 0 | 8743 0 | 8744 1,452 | 17.b.(1)
(2) Gross negative | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
fair value ................... | 8745 2,834 | 8746 0 | 8747 0 | 8748 0 | 17.b.(2)
c. Contracts held for | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
purposes other than | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
trading that are not | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
marked to market: | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
(1) Gross positive | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
fair value .................. | 8749 64,085 | 8750 0 | 8751 0 | 8752 100 | 17.c.(1)
(2) Gross negative | ///////////////// | ////////////////// | ////////////////// | ////////////////// |
fair value ................... | 8753 111,703 | 8754 0 | 8755 0 | 8756 0 | 17.c.(2)
|__________________________________________________________________________________|
</TABLE>
<TABLE>
<CAPTION>
______________________
Memoranda Dollar Amounts in Thousands | RCFD Bil Mil Thou |
_________________________________________________________________________________________________________________________
<S> <C> <C>
1. -2. Not applicable | ////////////////// |
3. Unused commitments with an original maturity exceeding one year that are reported in | ////////////////// |
Schedule RC-L, items 1.a through 1.e, above (report only the unused portions of commitments | ////////////////// |
that are fee paid or otherwise legally binding) ................................................ | 3833 16,829,602 | M.3.
a. Participations in commitments with an original maturity | ////////////////// |
exceeding one year conveyed to others ................................|RCFD 3834 | 1,310,691 | ////////////////// | M.3.a.
________________________
4. To be completed only by banks with $1 billion or more in total assets: | ////////////////// |
Standby letters of credit and foreign office guarantees (both financial and performance) issued | ////////////////// |
to non-U.S. addressees (domicile) included in Schedule RC-L, items 2 and 3, above .............. | 3377 341,139 | M.4.
5. Installment loans to individuals for household, family, and other personal expenditures that | ////////////////// |
have been securitized and sold without recourse (with servicing retained), amounts outstanding | ////////////////// |
by type of loan: | ////////////////// |
a. Loans to purchase private passenger automobiles (to be completed for the | ////////////////// |
September report only)....................................................................... | 2741 N/A | M.5.a.
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY)................................... | 2742 0 | M.5.b.
c. All other consumer installment credit (including mobile home loans)(to be completed for the | ////////////////// |
September report only........................................................................ | 2743 N/A | M.5.c
|____________________|
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-17
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9| _____________
| C465 |
_________|___________|
Schedule RC-M--Memoranda | |
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
______________________________________________________________________________________________________|____________________|
<S> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers, directors, principal | ////////////////// |
shareholders, and their related interests as of the report date: | ////////////////// |
a. Aggregate amount of all extensions of credit to all executive officers, directors, principal | ////////////////// |
shareholders and their related interests ..................................................... | 6164 605,294 | 1.a.
b. Number of executive officers, directors, and principal shareholders to whom the amount of all | ////////////////// |
extensions of credit by the reporting bank (including extensions of credit to | ////////////////// |
related interests) equals or exceeds the lesser of $500,000 or 5 percent Number | ////////////////// |
___________________________| ////////////////// |
of total capital as defined for this purpose in agency regulations. | RCFD 6165 | 24 | ////////////////// |
___________________________| ////////////////// | 1.b.
2. Federal funds sold and securities purchased under agreements to resell with U.S. branches | ////////////////// |
and agencies of foreign banks(1) (included in Schedule RC, items 3.a and 3.b) .................... | 3405 0 | 2.
3. Not applicable. | ////////////////// |
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for others | ////////////////// |
(include both retained servicing and purchased servicing): | ////////////////// |
a. Mortgages serviced under a GNMA contract ...................................................... | 5500 28,855,729 | 4.a.
b. Mortgages serviced under a FHLMC contract: | ////////////////// |
(1) Serviced with recourse to servicer ........................................................ | 5501 55,604 | 4.b.(1)
(2) Serviced without recourse to servicer ..................................................... | 5502 32,340,522 | 4.b.(2)
c. Mortgages serviced under a FNMA contract: | ////////////////// |
(1) Serviced under a regular option contract .................................................. | 5503 190,640 | 4.c.(1)
(2) Serviced under a special option contract .................................................. | 5504 38,282,672 | 4.c.(2)
d. Mortgages serviced under other servicing contracts ............................................ | 5505 8,508,320 | 4.d.
5. To be completed only by banks with $1 billion or more in total assets: | ////////////////// |
Customers' liability to this bank on acceptances outstanding (sum of items 5.a and 5.b must | ////////////////// |
equal Schedule RC, item 9): | ////////////////// |
a. U.S. addressees (domicile) .................................................................... | 2103 16,297 | 5.a.
b. Non-U.S. addressees (domicile) ................................................................ | 2104 337 | 5.b.
6. Intangible assets: | ////////////////// |
a. Mortgage servicing rights ..................................................................... | 3164 1,483,959 | 6.a.
b. Other identifiable intangible assets: | ////////////////// |
(1) Purchased credit card relationships ....................................................... | 5506 0 | 6.b.(1)
(2) All other identifiable intangible assets .................................................. | 5507 126,463 | 6.b.(2)
c. Goodwill ...................................................................................... | 3163 672,992 | 6.c.
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10) ........................ | 2143 2,283,414 | 6.d.
e. Amount of intangible assets (included in item 6.b.(2) above) that have been grandfathered or | ////////////////// |
are otherwise qualifying for regulatory capital purposes ...................................... | 6442 0 | 6.e.
7. Mandatory convertible debt, net of common or perpetual preferred stock dedicated to | ////////////////// |
redeem the debt ...................................................................................| 3295 75,000 | 7.
______________________
</TABLE>
- ------------
(1) Do not report federal funds sold and securities purchased under agreements
to resell with other commercial banks in the U.S. in this item.
27
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-18
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
Schedule RC-M--Continued ________________________
Dollar Amounts in Thousands | Bil Mil Thou|
_____________________________________________________________________________________________ |_______________________|
<S> <C> <C>
8. a. Other real estate owned: | /////////////////////// |
(1) Direct and indirect investments in real estate ventures ......................... | RCFD 5372 0 | 8.a.(1)
(2) All other real estate owned: | /////////////////////// |
(a) Construction and land development in domestic offices ....................... | RCON 5508 4,537 | 8.a.(2)(a)
(b) Farmland in domestic offices ................................................ | RCON 5509 0 | 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices ....................... | RCON 5510 8,067 | 8.a.(2)(c)
(d) Multifamily (5 or more) residential properties in domestic offices .......... | RCON 5511 740 | 8.a.(2)(d)
(e) Nonfarm nonresidential properties in domestic offices ....................... | RCON 5512 21,202 | 8.a.(2)(e)
(f) In foreign offices .......................................................... | RCFN 5513 0 | 8.a.(2)(f)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7) ....... | RCFD 2150 34,546 | 8.a.(3)
b. Investments in unconsolidated subsidiaries and associated companies: | /////////////////////// |
(1) Direct and indirect investments in real estate ventures ......................... | RCFD 5374 0 | 8.b.(1)
(2) All other investments in unconsolidated subsidiaries and associated companies ... | RCFD 5375 0 | 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8) ....... | RCFD 2130 0 | 8.b.(3)
c. Total assets of unconsolidated subsidiaries and associated companies ................ | RCFD 5376 0 | 8.c.
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC, | /////////////////////// |
item 23, "Perpetual preferred stock and related surplus" ............................... | RCFD 3778 125,000 | 9.
10. Mutual fund and annuity sales in domestic offices during the quarter (include | /////////////////////// |
proprietary, private label, and third party products): | /////////////////////// |
a. Money market funds .................................................................. | RCON 6441 55,245 | 10.a.
b. Equity securities funds ............................................................. | RCON 8427 108,359 | 10.b.
c. Debt securities funds ............................................................... | RCON 8428 13,250 | 10.c.
d. Other mutual funds .................................................................. | RCON 8429 0 | 10.d.
e. Annuities ........................................................................... | RCON 8430 102,292 | 10.e.
f. Sales of proprietary mutual funds and annuities (included in items 10.a through | /////////////////////// |
10.e. above) ........................................................................... | RCON 8784 150,100 | 10.f.
_________________________
</TABLE>
<TABLE>
<CAPTION>
_________________________________________________________________________________________________________________________________
| |
______________________
|Memorandum Dollar Amounts in Thousands | RCFD Bil Mil Thou | |
_________________________________________________________________________________________________ ____________________
<S> <C> <C>
|1. Interbank holdings of capital instruments (to be completed for the December report only): | ////////////////// | |
| a. Reciprocal holdings of banking organizations' capital instruments ........................ | 3836 N/A | M.1.a. |
| b. Nonreciprocal holdings of banking organizations' capital instruments ..................... | 3837 N/A | M.1.b. |
______________________
| |
_________________________________________________________________________________________________________________________________
</TABLE>
28
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-19
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-N--Past Due and Nonaccrual Loans, Leases,
and Other Assets
The FFIEC regards the information reported in __________
all of Memorandum item 1, in items 1 through 10, | C470 |
column A, and in Memorandum items 2 through 4, ______________________________________________________ ________
column A, as confidential. | (Column A) | (Column B) | (Column C) |
| Past due | Past due 90 | Nonaccrual |
| 30 through 89 | days or more | |
| days and still | and still | |
| accruing | accruing | |
____________________ ____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________ ____________________ ____________________ ____________________
<S> <C> <C> <C> <C>
1. Loans secured by real estate: | ////////////////// | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ................ | 1245 | 1246 71,390 | 1247 223,962 | 1.a.
b. To non-U.S. addressees (domicile) ............ | 1248 | 1249 0 | 1250 0 | 1.b.
2. Loans to depository institutions and | ///// | ////////////////// | ////////////////// |
acceptances of other banks: | ///// | ////////////////// | ////////////////// |
a. To U.S. banks and other U.S. depository | ///// | ////////////////// | ////////////////// |
institutions ................................. | 5377 | 5378 0 | 5379 0 | 2.a.
b. To foreign banks ............................. | 5380 | 5381 0 | 5382 0 | 2.b.
3. Loans to finance agricultural production and | ///// | ////////////////// | ////////////////// |
other loans to farmers .......................... | 1594 | 1597 385 | 1583 531 | 3.
4. Commercial and industrial loans: | ///// | ////////////////// | ////////////////// |
a. To U.S. addressees (domicile) ................ | 1251 | 1252 11,945 | 1253 108,334 | 4.a.
b. To non-U.S. addressees (domicile) ............ | 1254 | 1255 0 | 1256 0 | 4.b.
5. Loans to individuals for household, family, and | ///// | ////////////////// | ////////////////// |
other personal expenditures: | ///// | ////////////////// | ///////////////// |
a. Credit cards and related plans ............... | 5383 | 5384 1,187 | 5385 669 | 5.a.
b. Other (includes single payment, installment, | ///// | ////////////////// | ////////////////// |
and all student loans) ....................... | 5386 | 5387 22,600 | 5388 8,465 | 5.b.
6. Loans to foreign governments and official | ///// | ////////////////// | ////////////////// |
institutions .................................... | 5389 | 5390 0 | 5391 0 | 6.
7. All other loans ................................. | 5459 | 5460 14,909 | 5461 1,919 | 7.
8. Lease financing receivables: | ///// | ////////////////// | ////////////////// |
a. Of U.S. addressees (domicile) ................ | 1257 | 1258 95 | 1259 6,544 | 8.a.
b. Of non-U.S. addressees (domicile) ............ | 1271 | 1272 0 | 1791 0 | 8.b.
9. Debt securities and other assets (exclude other | ///// | ////////////////// | ////////////////// |
real estate owned and other repossessed assets) . | 3505 | 3506 0 | 3507 85,778 | 9.
________________________________________________________________
</TABLE>
<TABLE>
<CAPTION>
====================================================================================================================================
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and
leases. Report in item 10 below certain guaranteed loans and leases that have already been included in the amounts reported in
items 1 through 8.
________________________________________________________________
| RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
____________________ ____________________ ____________________
<S> <C> <C> <C> <C>
10. Loans and leases reported in items 1 | | | |
through 8 above which are wholly or partially | ///// | ////////////////// | ////////////////// |
guaranteed by the U.S. Government ............... | 5612 | 5613 18,447 | 5614 21,415 | 10.
a. Guaranteed portion of loans and leases | ///// | ////////////////// | ////////////////// |
included in item 10 above .................... | 5615 | 5616 18,250 | 5617 16,952 | 10.a.
________________________________________________________________
</TABLE>
29
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-20
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-N--Continued
__________
| C473 |
______________________________________________________ ________
| (Column A) | (Column B) | (Column C) |
| Past due | Past due 90 | Nonaccrual |
| 30 through 89 | days or more | |
| days and still | and still | |
Memoranda | accruing | accruing | |
____________________ ____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________ ____________________ ____________________ ____________________
<S> <C> <C> <C> <C>
1. Restructured loans and leases included in | ///// | /////////////////// | ///////////////// |
Schedule RC-N, items 1 through 8, above (and not | ///// | //// | |
reported in Schedule RC-C, part I, Memorandum | ///// | //// | |
item 2) ......................................... | 1658 | 1659 | | M.1.
2. Loans to finance commercial real estate, | ///// | //// | |
construction, and land development activities | ///// | //// | |
(not secured by real estate) included in | ///// | /////////////////// | ///////////////// |
Schedule RC-N, items 4 and 7, above ............. | 6558 | 6559 826 | 6560 7,043 | M.2.
|____________________|____________________ |___________________
3. Loans secured by real estate in domestic offices | RCON | RCON Bil Mil Thou | RCON Bil Mil Thou|
|___________________ |____________________ ____________________
(included in Schedule RC-N, item 1, above): | ///// | ////////////////// | ////////////////// |
a. Construction and land development ............ | 2759 | 2769 1,100 | 3492 26,422 | M.3.a.
b. Secured by farmland .......................... | 3493 | 3494 161 | 3495 0 | M.3.b.
c. Secured by 1-4 family residential properties: | ///// | ////////////////// | ////////////////// |
(1) Revolving, open-end loans secured by | ///// | ////////////////// | ////////////////// |
1-4 family residential properties and | ///// | ////////////////// | ////////////////// |
extended under lines of credit ........... | 5398 | 5399 5,114 | 5400 17,374 | M.3.c.(1)
(2) All other loans secured by 1-4 family | ///// | ////////////////// | ////////////////// |
residential properties ................... | 5401 | 5402 58,079 | 5403 75,430 | M.3.c.(2)
d. Secured by multifamily (5 or more) | ///// | ////////////////// | ////////////////// |
residential properties ....................... | 3499 | 3500 521 | 3501 12,491 | M.3.d.
e. Secured by nonfarm nonresidential properties . | 3502 | 3503 6,415 | 3504 92,245 | M.3.e.
________________________________________________________________
</TABLE>
<TABLE>
<CAPTION>
___________________________________________
| (Column A) | (Column B) |
| Past due 30 | Past due 90 |
| through 89 days | days or more |
____________________ ____________________
| RCFD Bil Mil Thou | RCFD Bil Mil Thou |
____________________ ____________________
<S> <C> <C> <C>
4. Interest rate, foreign exchange rate, and other | ///// | ////////////////// |
commodity and equity contracts: | ///// | ////////////////// |
a. Book value of amounts carried as assets ...... | 3522 | 3528 0 | M.4.a.
b. Replacement cost of contracts with a | ///// | ////////////////// |
positive replacement cost .................... | 3529 | 3530 0 | M.4.b.
___________________________________________
</TABLE>
30
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-21
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
______________________
Schedule RC-O--Other Data for Deposit Insurance Assessments | C475 |
|____________________|
Dollar Amounts in Thousands | RCON Bil Mil Thou |
___________________________________________________________________________________________________ ____________________
<S> <C> <C>
1. Unposted debits (see instructions): | ////////////////// |
a. Actual amount of all unposted debits ...................................................... | 0030 216 | 1.a.
OR | ////////////////// |
b. Separate amount of unposted debits: | ////////////////// |
(1) Actual amount of unposted debits to demand deposits ................................... | 0031 N/A | 1.b.(1)
(2) Actual amount of unposted debits to time and savings deposits(1) ...................... | 0032 N/A | 1.b.(2)
2. Unposted credits (see instructions): | ////////////////// |
a. Actual amount of all unposted credits ..................................................... | 3510 216 | 2.a.
OR | ////////////////// |
b. Separate amount of unposted credits: | ////////////////// |
(1) Actual amount of unposted credits to demand deposits .................................. | 3512 N/A | 2.b.(1)
(2) Actual amount of unposted credits to time and savings deposits(1) ..................... | 3514 N/A | 2.b.(2)
3. Uninvested trust funds (cash) held in bank's own trust department (not included in total | ////////////////// |
deposits in domestic offices) ................................................................ | 3520 101,763 | 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in | ////////////////// |
Puerto Rico and U.S. territories and possessions (not included in total deposits): | ////////////////// |
a. Demand deposits of consolidated subsidiaries .............................................. | 2211 206,111 | 4.a.
b. Time and savings deposits(1) of consolidated subsidiaries ................................. | 2351 20,089 | 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries ...................... | 5514 8 | 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions: | ////////////////// |
a. Demand deposits in insured branches (included in Schedule RC-E, Part II) .................. | 2229 0 | 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part II) ..... | 2383 0 | 5.b.
c. Interest accrued and unpaid on deposits in insured branches | ////////////////// |
(included in Schedule RC-G, item 1.b) ..................................................... | 5515 0 | 5.c.
______________________
______________________
Item 6 is not applicable to state nonmember banks that have not been authorized by the | ////////////////// |
Federal Reserve to act as pass-through correspondents. | ////////////////// |
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank on | ////////////////// |
behalf of its respondent depository institutions that are also reflected as deposit liabilities| ////////////////// |
of the reporting bank: | ////////////////// |
a. Amount reflected in demand deposits (included in Schedule RC-E, item 4 or 5, column B)..... | 2314 0 | 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule RC-E, Part I, | ////////////////// |
item 4 or 5, column A or C, but not column B).............................................. | 2315 0 | 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1) | ////////////////// |
a. Unamortized premiums ...................................................................... | 5516 769 | 7.a.
b. Unamortized discounts ..................................................................... | 5517 0 | 7.b.
______________________
_______________________________________________________________________________________________________________________________
| |
|8. To be completed by banks with "Oakar deposits." |
______________________
| Total "Adjusted Attributable Deposits" of all institutions acquired under Section 5(d)(3) of | ////////////////// | |
| the Federal Deposit Insurance Act (from most recent FDIC Oakar Transaction Worksheet(s)) .... | 5518 2,188,589 | 8. |
______________________
| |
_______________________________________________________________________________________________________________________________
______________________
9. Deposits in lifeline accounts ................................................................ | 5596 ///////////// | 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total | ////////////////// |
deposits in domestic offices) ................................................................ | 8432 0 | 10.
______________________
______________
(1) For FDIC insurance assessment purposes, "time and savings deposits" consists of nontransaction
accounts and all transaction accounts other than demand deposits.
</TABLE>
31
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-22
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-O--Continued
Dollar Amounts in Thousands | RCON Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
<S> <C> <C>
11. Adjustments to demand deposits in domestic offices reported in Schedule RC-E for | ////////////////// |
certain reciprocal demand balances: | ////////////////// |
a. Amount by which demand deposits would be reduced if reciprocal demand balances | ////////////////// |
between the reporting bank and savings associations were reported on a net basis | ////////////////// |
rather than a gross basis in Schedule RC-E .................................................. | 8785 0 | 11.a.
b. Amount by which demand deposits would be increased if reciprocal demand balances | ////////////////// |
between the reporting bank and U.S. branches and agencies of foreign banks were | ////////////////// |
reported on a gross basis rather than a net basis in Schedule RC-E .......................... | A181 0 | 11.b.
c. Amount by which demand deposits would be reduced if cash items in process of | ////////////////// |
collection were included in the calculation of net reciprocal demand balances between | ////////////////// |
the reporting bank and the domestic offices of U.S. banks and savings associations | ////////////////// |
in Schedule RC-E ............................................................................ | A182 0 | 11.c.
____________________
Memoranda (to be completed each quarter except as noted) Dollar Amounts in Thousands | RCON Bil Mil Thou |
_____________________________________________________________________ ___________________________|____________________|
1. Total deposits in domestic offices of the bank (sum of Memorandum it ems 1.a. (1) and | ////////////////// |
1.b.(1) must equal Schedule RC, item 13.a): | ////////////////// |
a. Deposits accounts of $100,000 or less: | ////////////////// |
(1) amount of deposit accounts of $100,000 or less ....................................... | 2702 19,755,631 | M.1.a.(1)
(2) Number of deposit accounts of $100,000 or less (to be Number | ////////////////// |
completed for the June report only) .............................|RCON 3779 3,742,107 | ////////////////// | M.1.a.(2)
b. Deposit accounts of more than $100,000: | ////////////////// |
(1) Amount of deposit accounts of more than $100,000 ..................................... | 2710 14,354,949 | M.1.b.(1)
Number | ////////////////// |
(2) Number of deposit accounts of more than $100,000 ................|RCON 2722 27,062 | ////////////////// | M.1.b.(2)
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by mutiplying the
number of deposit accounts of more than $100,000 reported in Memorandum item 1.b.(2)
above by $100,000 and subtracting the result from the amount of deposit accounts of
more than $100,000 reported in Memorandum item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a method or
procedure for determining a better estimate of uninsured deposits than the ____________YES_______NO__
estimated described above .................................................................. | 6861| |///| x | M.2.a.
____________________
b. If the box marked YES has been checked, report the estimate of uninsured deposits |RCON Bil Mil Thou|
determined by using your bank's method or procedure .................................... | 5597 N/A | M.2.b.
_____________________________________________________________________________________________________________________________
| C477 |
Person to whom questions about the Reports of Condition and Income should be directed: __________
PAMELA S. FLYNN, VICE PRESIDENT (401) 278-5194
___________________________________________________________________________________ ______________________________________
Name and Title (TEXT 8901) Area code and phone number (TEXT 8902)
</TABLE>
32
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<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-23
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-R--Regulatory Capital
This schedule must be completed by all banks as follows: Banks that reported total assets of $1 billion or more in Schedule RC,
item 12, for June 30, 1995, must complete items 2 through 9 and Memoranda items 1 and 2. Banks with assets of less than
$1 billion must complete items 1 through 3 below or Schedule RC-R in its entirety, depending on their response to item 1 below.
<S> <C>
____________
| C480 |
1. Test for determining the extent to which Schedule RC-R must be completed. To be completed _____|__________|
only by banks with total assets of less than $1 billion. Indicate in the appropriate | YES NO |
box at the right whether the bank has total capital greater than or equal to eight percent___________ _______________
of adjusted total assets ............................................................... | RCFD 6056 | |////| | 1.
_____________________________
For purposes of this test, adjusted total assets equals total assets less cash, U.S. Treasuries, U.S. Government
agency obligations, and 80 percent of U.S. Government-sponsored agency obligations plus the allowance for loan
and lease losses and selected off-balance sheet items as reported on Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to complete items 2 and 3 below. If the box marked
NO has been checked, the bank must complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual risk-based capital ratio is less than eight
percent or that the bank is not in compliance with the risk-based capital guidelines.
</TABLE>
<TABLE>
<CAPTION>
___________________________________________
| (Column A) | (Column B) |
|Subordinated Debt(1)| Other |
_________________________________________________________________ | and Intermediate | Limited- |
| NOTE: All banks are required to complete items 2 and 3 below | | Term Preferred | Life Capital |
| See optional worksheet for items 3.a through 3.f. | | Stock | Instruments |
|________________________________________________________________| ____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
2. Subordinated debt(1) and other limited-life capital instruments (original | | |
weighted average maturity of at least five years) with a remaining | | |
maturity of: | | |
a. One year or less ...................................................... | 3780 25,737 | 3786 0 | 2.a.
b. Over one year through two years ....................................... | 3781 737 | 3787 0 | 2.b.
c. Over two years through three years .................................... | 3782 10,745 | 3788 0 | 2.c.
d. Over three years through four years ................................... | 3783 0 | 3789 0 | 2.d.
e. Over four years through five years .................................... | 3784 0 | 3790 0 | 2.e.
f. Over five years ....................................................... | 3785 1,101,000 | 3791 0 | 2.f.
3. Amounts used in calculating regulatory capital ratios (report amounts | ////////////////// | ////////////////// |
determined by the bank for its own internal regulatory capital analyses): | ////////////////// | RCFD Bil Mil Thou |
a. Tier 1 capital......................................................... | ////////////////// | 8274 3,590,367 | 3.a.
b. Tier 2 capital......................................................... | ////////////////// | 8275 1,755,646 | 3.b.
c. Total risk-based capital............................................... | ////////////////// | 3792 5,346,013 | 3.c.
d. Excess allowance for loan and lease losses............................. | ////////////////// | A222 297,250 | 3.d.
e. Risk-weighted assets................................................... | ////////////////// | A223 45,718,856 | 3.e.
f. "Average total assets"................................................. | ////////////////// | A224 51,482,775 | 3.f.
___________________________________________
| (Column A) | (Column B) |
Items 4-9 and Memoranda items 1 and 2 are to be completed | Assets | Credit Equiv- |
by banks that answered NO to item 1 above and | Recorded | alent Amount |
by banks with total assets of $1 billion or more. | on the | of Off-Balance |
| Balance Sheet | Sheet Items(2) |
____________________ ____________________
| RCFD Bil Mil Thou | RCFD Bil Mil Thou |
____________________ ____________________
<S> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance sheet items assigned | | |
to the Zero percent risk category: | ////////////////// | ////////////////// |
a. Assets recorded on the balance sheet: | ////////////////// | ////////////////// |
(1) Securities issued by, other claims on, and claims unconditionally | ////////////////// | ////////////////// |
guaranteed by, the U.S. Government and its agencies and other | ////////////////// | ////////////////// |
OECD central governments .......................................... | 3794 2,147,648 | ////////////////// | 4.a.(1)
(2) All other ......................................................... | 3795 1,115,265 | ////////////////// | 4.a.(2)
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3796 101,488 | 4.b.
___________________________________________
</TABLE>
_____
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not report in column B the risk-weighted amount of assets reported in
column A.
33
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
Address: ONE MONARCH PLACE Page RC-24
City, State Zip: SPRINGFIELD, MA 01102
FDIC Certificate No.: |0|2|4|9|9|
___________
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-R--Continued
___________________________________________
| (Column A) | (Column B) |
| Assets | Credit Equiv- |
| Recorded | alent Amount |
| on the | of Off-Balance |
| Balance Sheet | Sheet Items(1) |
____________________ ____________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou | RCFD Bil Mil Thou |
______________________________________________________________________________ ____________________ ____________________
<S> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance sheet items | ////////////////// | ////////////////// |
assigned to the 20 percent risk category: | ////////////////// | ////////////////// |
a. Assets recorded on the balance sheet: | ////////////////// | ////////////////// |
(1) Claims conditionally guaranteed by the U.S. Government and its | ////////////////// | ////////////////// |
agencies and other OECD central governments ....................... | 3798 714,375 | ////////////////// | 5.a.(1)
(2) Claims collateralized by securities issued by the U.S. Govern- | ////////////////// | ////////////////// |
ment and its agencies and other OECD central governments; by | ////////////////// | ////////////////// |
securities issued by U.S. Government-sponsored agencies; and | ////////////////// | ////////////////// |
by cash on deposit ................................................ | 3799 0 | ////////////////// | 5.a.(2)
(3) All other ......................................................... | 3800 8,774,345 | ////////////////// | 5.a.(3)
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3801 791,065 | 5.b.
6. Assets and credit equivalent amounts of off-balance sheet items | ////////////////// | ////////////////// |
assigned to the 50 percent risk category: | ////////////////// | ////////////////// |
a. Assets recorded on the balance sheet .................................. | 3802 5,265,173 | ////////////////// | 6.a.
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3803 409,680 | 6.b.
7. Assets and credit equivalent amounts of off-balance sheet items | ////////////////// | ////////////////// |
assigned to the 100 percent risk category: | ////////////////// | ////////////////// |
a. Assets recorded on the balance sheet .................................. | 3804 31,799,547 | ////////////////// | 7.a.
b. Credit equivalent amount of off-balance sheet items ................... | ////////////////// | 3805 10,122,631 | 7.b.
8. On-balance sheet asset values excluded from the calculation of the | ////////////////// | ////////////////// |
risk-based capital ratio(2) .............................................. | 3806 83,713 | ////////////////// | 8.
9. Total assets recorded on the balance sheet (sum of | ////////////////// | ////////////////// |
items 4.a, 5.a, 6.a, 7.a, and 8, column A)(must equal Schedule RC, | ////////////////// | ////////////////// |
item 12 plus items 4.b and 4.c) .......................................... | 3807 49,900,066 | ////////////////// | 9.
___________________________________________
Memoranda
______________________
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
__________________________________________________________________________________________________ ____________________
1.Current credit exposure across all off-balance sheet derivative contracts covered by the | ///////////////// |
risked-based capital standards .................................................................| 8764 135,825| M.1.
|___________________|
_____________________________________________________________________
| With a remaining maturity of |
|____________________________________________________________________|
| (Column A) | (Column B) | (Column C) |
| | | |
| One year or less | Over one year | Over five years |
| | through five years | |
|______________________|______________________|______________________|
|RCFD Tril Bil Mil Thou|RCFD Tril Bil Mil Thou|RCFD Tril Bil Mil Thou|
|______________________|______________________|______________________|
2. Notional principal amounts of | | | |
off-balance sheet derivative contracts(3):| | | |
a. Interest rate contracts ................. | 3809 8,320,956 | 8766 18,597,686 | 8767 801,055 | M.2.a.
b. Foreign exchange contracts .............. | 3812 1,578,420 | 8769 101,907 | 8770 0 | M.2.b.
c. Gold contracts .......................... | 8771 15,291 | 8772 0 | 8773 0 | M.2.c.
d. Other precious metals contracts ......... | 8774 8,748 | 8775 0 | 8776 0 | M.2.d.
e. Other commodity contracts ............... | 8777 0 | 8778 0 | 8779 0 | M.2.e.
f. Equity derivative contracts ............. | A000 0 | A001 0 | A002 0 | M.2.f.
|____________________________________________________________________|
</TABLE>
_________________
1) Do not report in column B the risk-weighted amount of
assets reported in column A.
2) Include the difference between the fair value and the amortized cost of
available-for-sale securities in item 8 and report the amortized cost of these
securities in items 4 through 7 above. Item 8 also includes on-balance sheet
asset values (or portions thereof) of off-balance sheet interest rate, foreign
exchange rate, and commodity contracts and those contracts (e.g., futures
contracts) not subject to risk-based capital. Exclude from item 8 margin
accounts and accrued receivables as well as any portion of the allowance for
loan and lease losses in excess of the amount that may be included in Tier 2
capital. 3) Exclude foreign exchange contracts with an original maturity of 14
days or less and all futures contracts.
34
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: FLEET NATIONAL BANK
Address: ONE MONARCH PLACE Call Date: 06/30/96 ST-BK: 25-0590 FFIEC 031
City, State, Zip: SPRINGFIELD, MA 01102 Page RC-25
FDIC Certificate No.: 02499
</TABLE>
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on June 30, 1996
FLEET NATIONAL BANK SPRINGFIELD , MASSACHUSETTS
- ------------------- ----------------- -------------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief
narrative statement on the amounts reported in the Reports of Condition and
Income. This optional statement will be made available to the public, along
with the publicly available data in the Reports of Condition and Income, in
response to any request for individual bank report data. However, the
information reported in column A and in all of Memorandum item 1 of Schedule
RC-N is regarded as confidential and will not be released to the public.
BANKS CHOOSING TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE
STATEMENT DOES NOT CONTAIN THE NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL
BANK CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS
IN SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY ARE NOT WILLING TO HAVE
MADE PUBLIC OR THAT WOULD COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks
choosing not to make a statement may check the "No comment" box below and
should make no entries of any kind in the space provided for the narrative
statement; i.e., DO NOT enter in this space such phrases as "No statement,"
"Not applicable," "N/A," "No comment," and "None."
The optional statement must be entered on this sheet. The statement should
not exceed 100 words. Further, regardless of the number of words, the
statement must not exceed 750 characters, including punctuation, indentation,
and standard spacing between words and sentences. If any submission should
exceed 750 characters, as defined, it will be truncated at 750 characters with
no notice to the submitting bank and the truncated statement will appear as the
bank's statement both on agency computerized records and in computer-file
releases to the public.
All information furnished by the bank in the narrative statement must be
accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statement's accuracy. The statement must be
signed, in the space provided below, by a senior officer of the bank who
thereby attests to its accuracy.
If, subsequent to the original submission, material changes are submitted for
the data reported in the Reports of Condition and Income, the existing
narrative statement will be deleted from the files, and from disclosure; the
bank, at its option, may replace it with a statement, under signature,
appropriate to the amended data.
The optional narrative statement will appear in agency records and in release
to the public exactly as submitted (or amended as described in the preceding
paragraph) by the management of the bank (except for the truncation of
statements exceeding the 750-character limit described above). THE STATEMENT
WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES FOR
ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT SIGNIFY THAT ANY
FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE
INFORMATION CONTAINED THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY
PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
__________________________________________________________________________
No comment |X| (RCON 6979) | c471 | C472 |
BANK MANAGEMENT STATEMENT (please type or print clearly):
(TEXT 6980)
/s/__Gero DeRosa_______________________________ ___7/25/96________
Signature of Executive Officer of Bank Date of Signature
35
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