AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 21, 1995
REGISTRATION NO. 33-63631
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FLEET FINANCIAL GROUP, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
RHODE ISLAND 05-0341324
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
50 KENNEDY PLAZA
PROVIDENCE, RHODE ISLAND 02903
(401) 278-5800
(Address including zip code, and telephone number, including area code, of the
Registrant's principal executive offices)
WILLIAM C. MUTTERPERL, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
FLEET FINANCIAL GROUP, INC.
50 Kennedy Plaza
Providence, Rhode Island 02903
(401) 278-5880
(Name, address, and telephone number of agent for service)
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Copies to:
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<S> <C>
LAURA N. WILKINSON, ESQ. B. ROBBINS KIESSLING, ESQ.
EDWARDS & ANGELL CRAVATH, SWAINE & MOORE
One Hospital Trust Plaza Worldwide Plaza, 825 Eighth Avenue
Providence, Rhode Island 02903 New York, New York 10019
(401) 274-9200 (212) 474-1000
</TABLE>
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
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 same 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 registrations statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. X
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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.
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<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two forms of Prospectus: one to be used
in connection with the offering and sale of Debt Securities, including any
Preferred Stock, Depositary Shares and Common Stock into which the Debt
Securities may be convertible, and one to be used in connection with the
offering and sale of Preferred Stock, Depositary Shares and Common Stock,
including any such shares into which the Preferred Stock or Depositary Shares
may be convertible. Each offering made under this Registration Statement will be
made pursuant to one of these Prospectuses, with the specific terms of the
securities offered thereby being set forth in an accompanying Prospectus
Supplement.
<PAGE>
SUBJECT TO COMPLETION, DATED , 1995
PROSPECTUS
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
FLEET FINANCIAL GROUP, INC.
Fleet Financial Group, Inc., a Rhode Island corporation ("Fleet"), may offer
from time to time debt securities (the "Debt Securities"), which may be either
senior (the "Senior Debt Securities") or subordinated (the "Subordinated Debt
Securities") in priority of payment, and warrants to purchase Debt Securities
(the "Warrants"), having a public offering price of up to an aggregate of
$750,000,000 (or the equivalent thereof if any of the Securities are denominated
in a foreign currency or a foreign currency unit, such as European Currency
Units ("ECU")). If Debt Securities are issued at original issue discount, Fleet
may issue such higher principal amount as may be sold for an initial public
offering price of up to $750,000,000 (less the dollar amount of any securities
previously issued hereunder), or the equivalent thereof in one or more foreign
currencies, foreign currency units, or composite currencies. The Debt Securities
and Warrants (collectively, the "Securities") may be offered separately or as
units with other securities, in separate series, in amounts and at prices and
terms to be set forth in an accompanying Prospectus Supplement (a "Prospectus
Supplement"). In addition, the Debt Securities may be convertible into shares of
Fleet's preferred stock (the "Preferred Stock"), depositary shares representing
Preferred Stock (the "Depositary Shares") or common stock (the "Common Stock")
on terms to be set forth in the accompanying Prospectus Supplement. Pursuant to
the terms of the Registration Statement of which this Prospectus constitutes a
part, Fleet may also offer and sell shares of its Preferred Stock, which may be
represented by Depositary Shares, shares of its Common Stock or warrants to
purchase Preferred Stock or Common Stock (the "Equity Warrants"). Any such
Preferred Stock, Depositary Shares, Common Stock or Equity Warrants will be
offered and issued pursuant to the terms of a separate Prospectus contained in
such Registration Statement. The aggregate amount of Debt Securities and
Warrants that may be offered and sold pursuant hereto is subject to reduction as
the result of the sale of any Preferred Stock, Depositary Shares, Common Stock
or Equity Warrants pursuant to such separate Prospectus.
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the accompanying Prospectus Supplement,
together with the terms of the offering of the Securities and the initial price
and net proceeds to Fleet from the sale thereof. The Prospectus Supplement will
include, with regard to the particular Securities, the following information:
(i) in the case of Debt Securities, the specific designation, priority,
aggregate principal amount, denominations, currency or currency unit for which
Debt Securities may be purchased, currency or currency unit in which the
principal and any interest on Debt Securities is payable, location of the
offering, maturity, rate (which may be fixed or variable) and time of payment of
interest, if any, terms for redemption, if any, at the option of Fleet or the
holder, terms for sinking or purchase fund payments, if any, whether any Debt
Securities which are Subordinated Debt Securities will be subordinated to other
indebtedness of Fleet, the initial public offering price, if any, of the Debt
Securities, terms relating to temporary or permanent global securities, special
provisions relating to Debt Securities in bearer form, provisions regarding
registration of transfer or exchange, provisions relating to the payment of any
additional amounts, any conversion or exchange provisions and provisions
regarding original issue discount securities; (ii) in the case of Warrants, the
duration, offering price, exercise price and detachability of any such warrants;
and (iii) in the case of all Securities, whether such Securities will be offered
separately or as a unit with other securities. The Prospectus Supplement will
also contain information, where applicable, about certain United States federal
income tax considerations relating to, and any listing on a securities exchange
of, the Securities covered by the Prospectus Supplement.
Fleet may sell Securities to or through underwriters or dealers, and also
may sell Securities directly to other purchasers or through agents. See "Plan of
Distribution". If any agents or underwriters are involved in the sale of any of
the Securities, their names, any applicable fee, commission, purchase price or
discount arrangements with them will be set forth, or will be calculable from
the information set forth, in the Prospectus Supplement. Fleet may sell
Securities in an offering within the United States ("United States Offering") or
outside the United States ("International Offering").
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALE OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
THE SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF
ANY BANK OR NONBANK SUBSIDIARY OF FLEET AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
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 , 1995.
<PAGE>
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.
<PAGE>
AVAILABLE INFORMATION
Fleet 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"). Proxy statements, reports
and other information concerning Fleet can be inspected and copied at the
Commission's office at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and the Commission's Regional Offices in New York (Suite
1300, Seven World Trade Center, New York, New York 10048) and Chicago
(Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661), and copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Common Stock is listed on the New York Stock
Exchange. Reports, proxy material and other information concerning Fleet also
may be inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005. This Prospectus does not contain all the information
set forth in the Registration Statement and Exhibits thereto which Fleet has
filed with the Commission under the Securities Act of 1933, as amended (the
"Act"), which may be obtained from the Public Reference Section of the
Commission at its principal office at 450 Fifth Street, N.W., Washington, D.C.
20549, upon payment of the prescribed fees, and to which reference is hereby
made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Fleet are incorporated
in this Prospectus by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1994, as
amended by a Form 10-K/A dated April 28, 1995.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995,
June 30, 1995 and September 30, 1995.
3. Current Reports on Form 8-K dated January 18, 1995, January 27, 1995,
February 20, 1995, February 21, 1995, April 13, 1995, May 11, 1995,
May 17, 1995, June 21, 1995, August 11, 1995, August 23, 1995, October
18, 1995, October 26, 1995 and November 16, 1995.
4. The description of the Common Stock contained in a Registration
Statement filed by Industrial National Corporation (predecessor to
Fleet) on Form 8-B dated May 29, 1970, and any amendment or report
filed for the purpose of updating such description.
5. The description of the Preferred Share Purchase Rights contained in
Fleet's Registration Statement on Form 8-A dated November 29, 1990,
and any amendment or report filed for the purpose of updating such
description.
Such incorporation by reference shall not be deemed to specifically
incorporate by reference the information referred to in Item 402(a)(8) of
Regulation S-K.
All documents filed with the Commission by Fleet pursuant to Sections 13, 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities offered hereby are
incorporated herein by reference and such documents shall be deemed to be a part
hereof from the date of filing of such documents. Any statement contained in
this Prospectus or in a document incorporated or deemed to be incorporated by
reference herein 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 document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN, WITHOUT CHARGE,
UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN (OTHER THAN THE EXHIBITS TO SUCH DOCUMENTS). WRITTEN REQUESTS
SHOULD BE MAILED TO INVESTOR RELATIONS DEPARTMENT, FLEET FINANCIAL GROUP, INC.,
50 KENNEDY PLAZA, PROVIDENCE, RHODE ISLAND 02903. TELEPHONE REQUESTS MAY BE
DIRECTED TO (401) 278-5800.
2
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FLEET FINANCIAL GROUP, INC.
GENERAL
Fleet is a diversified financial services company organized under the laws
of the State of Rhode Island. At September 30, 1995, Fleet was the 16th largest
banking institution in the United States in terms of total assets, with total
assets of $50.9 billion, total deposits of $32.4 billion and stockholders'
equity of $4.4 billion.
Fleet is engaged in a general commercial banking and trust business
throughout the states of New York, Rhode Island, Connecticut, Massachusetts,
Maine and New Hampshire through its banking subsidiaries, Fleet Bank
("Fleet-NY"); Fleet National Bank ("Fleet-RI"); Fleet Bank, National Association
("Fleet-CT"); Fleet Bank of Massachusetts, National Association ("Fleet-MA");
Fleet Bank of Maine and Fleet Bank-NH.
Fleet provides, through its nonbanking subsidiaries, a variety of financial
services, including mortgage banking, asset-based lending, equipment leasing,
consumer finance, real estate financing, securities brokerage services,
investment banking, investment advice and management, data processing and
student loan servicing.
On February 20, 1995, Fleet and Shawmut National Corporation ("Shawmut")
entered into an Agreement and Plan of Merger (the "Merger Agreement") providing
for the merger of Shawmut with and into Fleet (the "Merger"). For additional
information regarding the Merger and certain pro forma financial information
relating thereto, see Fleet's Current Reports on Form 8-K dated February 20,
1995, February 21, 1995, April 13, 1995, May 17, 1995, June 21, 1995, August 11,
1995, August 23, 1995 and November 16, 1995.
The principal office of Fleet is located at 50 Kennedy Plaza, Providence,
Rhode Island 02903, telephone number (401) 278-5800.
REGULATORY MATTERS
General. Fleet is a legal entity separate and distinct from its
subsidiaries. The ability of holders of debt and equity securities of Fleet,
including the holders of the Securities offered hereby, to benefit from the
distribution of assets of any subsidiary upon the liquidation or reorganization
of such subsidiary is subordinate to prior claims of creditors of the subsidiary
(including depositors in the case of banking subsidiaries) except to the extent
that a claim of Fleet as a creditor may be recognized.
There are various statutory and regulatory limitations on the extent to
which banking subsidiaries of Fleet can finance or otherwise transfer funds to
Fleet or its nonbanking subsidiaries, whether in the form of loans, extensions
of credit, investments or asset purchases. Such transfers by any subsidiary bank
to Fleet or any nonbanking subsidiary are limited in amount to 10% of the bank's
capital and surplus and, with respect to Fleet and all such nonbanking
subsidiaries, to an aggregate of 20% of each such bank's capital and surplus.
Furthermore, loans and extensions of credit are required to be secured in
specified amounts and are required to be on terms and conditions consistent with
safe and sound banking practices.
In addition, there are regulatory limitations on the payment of dividends
directly or indirectly to Fleet from its banking subsidiaries. Under applicable
banking statutes, at September 30, 1995, Fleet's banking subsidiaries could have
declared additional dividends of approximately $446 million, of which $121
million could have been declared by Fleet-MA and Fleet-CT. Holders of Fleet's
dual convertible preferred stock are entitled to dividends equal to one-half of
the total common dividends declared (after the first $15 million in common
dividends) to Fleet, if any, by Fleet Banking Group, Inc. ("Fleet Banking
Group"), a wholly-owned subsidiary of Fleet and the holder of all of the
outstanding common stock of each of Fleet-MA and Fleet-CT. As of the date of the
Prospectus Supplement, Fleet Banking Group has not paid any dividends on its
common stock to Fleet. Federal and state regulatory agencies also have the
authority to limit further Fleet's banking subsidiaries' payment of dividends
based on other factors, such as the maintenance of adequate capital for such
subsidiary bank.
3
<PAGE>
Under the policy of the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board"), Fleet is expected to act as a source of financial
strength to each subsidiary bank and to commit resources to support such
subsidiary bank in circumstances where it might not do so absent such policy. In
addition, any subordinated loans by Fleet to any of the subsidiary banks would
also be subordinate in right of payment to deposits and obligations to general
creditors of such subsidiary bank. Further, the Crime Control Act of 1990
amended the federal bankruptcy laws to provide that in the event of the
bankruptcy of Fleet, any commitment by Fleet to its regulators to maintain the
capital of a banking subsidiary will be assumed by the bankruptcy trustee and
entitled to a priority of payment.
FIRREA.
As a result of the enactment of the Financial Institutions Reform, Recovery
and Enforcement Act ("FIRREA") on August 9, 1989, any or all of Fleet's
subsidiary banks can be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC after August 9, 1989, in connection with
(a) the default of any other of Fleet's subsidiary banks or (b) any assistance
provided by the FDIC to any other of Fleet's subsidiary banks in danger of
default. "Default" is defined generally as the appointment of a conservator or
receiver and "in danger of default" is defined generally as the existence of
certain conditions indicating that a "default" is likely to occur without
regulatory assistance.
FDICIA.
The Federal Deposit Insurance Corporation Improvement Act of 1991 (the
"FDICIA"), which was enacted on December 19, 1991, provides for, among other
things, increased funding for the Bank Insurance Fund (the "BIF") of the FDIC
and expanded regulation of depository institutions and their affiliates,
including parent holding companies. A summary of certain provisions of FDICIA
and its implementing regulations is provided below.
Prompt Corrective Action. The FDICIA provides the federal banking agencies
with broad powers to take prompt corrective action to resolve problems of
insured depository institutions, depending upon a particular institution's level
of capital. The FDICIA establishes five tiers of capital measurement for
regulatory purposes ranging from "well-capitalized" to "critically
undercapitalized." A depository institution may be deemed to be in a
capitalization category that is lower than is indicated by its actual capital
position under certain circumstances. At September 30, 1995, each of Fleet's
subsidiary depository institutions was classified as "well-capitalized" under
the prompt corrective action regulations described above.
Brokered Deposits. Under the FDICIA, a depository institution that is
well-capitalized may accept brokered deposits. A depository institution that is
adequately capitalized may accept brokered deposits only if it obtains a waiver
from the FDIC, and may not offer interest rates on deposits "significantly
higher" than the prevailing rate in its market. An undercapitalized depository
institution may not accept brokered deposits. In Fleet's opinion, these
limitations do not have a material effect on Fleet.
Safety and Soundness Standards. The FDICIA, as amended, directs each federal
banking agency to prescribe safety and soundness standards for depository
institutions relating to internal controls, information systems, internal audit
systems, loan documentation, credit underwriting, interest rate exposure, asset
growth, compensation, asset-quality, earnings and stock valuation. Final
interagency regulations to implement these new safety and soundness standards
have recently been adopted by the federal banking agencies. In July 1995, the
federal banking agencies published proposed guidelines establishing safety and
soundness standards concerning asset quality and earnings. If adopted in final
form, these proposed guidelines will be incorporated into the Interagency
Guidelines Establishing Standards for Safety and Soundness. The ultimate
cumulative effect of these standards cannot currently be forecast.
The FDICIA also contains a variety of other provisions that may affect
Fleet's operations, including new reporting requirements, regulatory standards
for real estate lending, "truth in savings" provisions, and the requirement that
a depository institution give 90 days' prior notice to customers and regulatory
authorities before closing any branch.
4
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Capital Guidelines
Under the Federal Reserve Board's capital guidelines, the minimum ratio of
total capital to risk-adjusted assets (including certain off-balance sheet
items, such as standby letters of credit) is 8%. At least half of the total
capital is to be comprised of common equity, retained earnings, minority
interests in the equity accounts of consolidated subsidiaries and a limited
amount of noncumulative perpetual preferred stock, less deductible intangibles
("Tier 1 capital"). The remainder may consist of perpetual debt, mandatory
convertible debt securities, a limited amount of subordinated debt, other
preferred stock and a limited amount of loan loss reserves ("Tier 2 capital").
In addition, the Federal Reserve Board requires a leverage ratio (Tier 1 capital
to average quarterly assets, net of goodwill) of 3% for bank holding companies
that meet certain specified criteria, including that they have the highest
regulatory rating. The rule indicates that the minimum leverage ratio should be
1% to 2% higher for holding companies undertaking major expansion programs or
that do not have the highest regulatory rating. Fleet's national banking
subsidiaries are subject to similar capital requirements adopted by the
Comptroller of the Currency.
The federal banking agencies continue to consider capital requirements
applicable to banking organizations. Effective September 1, 1995, the federal
banking agencies adopted amendments to their risk-based capital regulations to
provide for the consideration of interest rate risk in the determination of a
bank's minimum capital requirements. The amendments require that banks
effectively measure and monitor their interest rate risk and that they maintain
capital adequate for that risk. Under the amendments, banks with excess interest
rate risk would be required to maintain additional capital beyond that generally
required. In addition, effective January 17, 1995, the federal banking agencies
adopted amendments to their risk-based capital standards to provide for the
concentration of credit risk and certain risks arising from nontraditional
activities, as well as a bank's ability to manage these risks, as important
factors in assessing a bank's overall capital adequacy.
As of September 30, 1995, Fleet's capital ratios on a historical basis
exceeded all minimum regulatory capital requirements.
Under federal banking laws, failure to meet the minimum regulatory capital
requirements could subject a banking institution to a variety of enforcement
remedies available to federal regulatory authorities, including the termination
of deposit insurance by the FDIC and seizure of the institution.
Interstate Banking and Branching Legislation
On September 29, 1994, President Clinton signed the Riegle-Neal Interstate
Banking and Branching Efficiency Act of 1994 (the "Interstate Act") into law.
The Interstate Act facilitates the interstate expansion and consolidation of
banking organizations by permitting (i) beginning one year after enactment of
the legislation, bank holding companies that are adequately capitalized and
managed to acquire banks located in states outside their home states regardless
of whether such acquisitions are authorized under the law of the host state,
(ii) the interstate merger of banks after June 1, 1997, subject
to the right of individual states to "opt in" or "opt out" of this authority
prior to such date, (iii) banks to establish new branches on an interstate basis
provided that such action is specifically authorized by the law of the host
state, (iv) foreign banks to establish, with approval of the appropriate
regulators in the United States, branches outside their home states to the same
extent that national or state banks located in such state would be authorized to
do so and (v) beginning September 29, 1995, banks to receive deposits, renew
time deposits, close loans, service loans and receive payments on loans and
other obligations as agent for any bank or thrift affiliate, whether the
affiliate is located in the same or different state. Connecticut and Rhode
Island, which are two states in which Fleet subsidiaries conduct banking
operations, have adopted legislation opting into the interstate provisions of
the Interstate Act. Fleet is currently considering the potential benefits in
cost savings and convenience to its customers that might be achieved through
combinations of two or more of its banking subsidiaries.
5
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DEPOSIT INSURANCE ASSESSMENTS
The deposits of each of Fleet's subsidiary banks are insured up to
regulatory limits by the FDIC and, accordingly, are subject to deposit insurance
assessments to maintain the Bank Insurance Fund ("BIF") administered by the
FDIC. The FDIC has adopted regulations establishing a permanent risk-related
deposit insurance assessment system. Under this system, the FDIC places each
insured bank in one of nine risk categories based on (a) the bank's
capitalization and (b) supervisory evaluations provided to the FDIC by the
institution's primary federal regulator. Each insured bank's insurance
assessment rate is then determined by the risk category in which it is
classified by the FDIC. There is currently a 27 basis point spread between the
highest and lowest assessment rates, so that banks classified in the highest
capital and supervisory evaluation categories by the FDIC are currently subject
to a rate of $0.04 per $100 of deposits and banks classified in the lowest
capital and supervisory evaluation categories by the FDIC are currently subject
to a rate of $0.31 per $100 of deposits.
On November 14, 1995, the FDIC voted to decrease premiums effective January
1, 1995. The decrease will lower the rate of deposit insurance premiums by $.04
per $100 of deposits for banks in each risk assessment category. As a result,
banks in the highest capital and supervisory evaluation categories will have an
assessment rate of $0.00, and will pay only the minimum assessment of $2,000 per
year for deposit insurance. Banks in the lowest capital and supervisory
evaluation categories will be subject to a rate of $0.27 per $100 of deposits.
These assessment rates also reflect the amount the FDIC has determined is
necessary to maintain the reserve ratio of BIF of 1.25% of total insured bank
deposits. The FDIC has announced that this reserve ratio was achieved during
1995. However, due primarily to the fact that the reserve ratio of the FDIC's
Savings Association Insurance Fund ("SAIF") is not projected to reach the
required level of 1.25% for several years, the FDIC has made a proposal to
Congress to (1) capitalize the SAIF through a special up-front cash assessment
on SAIF deposits; (2) spread the responsibility for payment to the Financing
Corporation created under Title III of the Competitive Equality Banking Act of
1987 proportionally over all FDIC-insured institutions; and (3) as soon as
practicable, merge the BIF and the SAIF.
Some Fleet subsidiary banks hold deposits that were acquired from savings
institutions and that, accordingly, are insured by SAIF. At September 30, 1995,
Fleet's banks held approximately $457 million of such deposits.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Fleet's consolidated ratios of earnings to fixed charges were as follows for
the years and periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, ------------------------------------
1995 1994 1993 1992 1991 1990
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<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits.................. 2.67x 2.80x 2.81x 2.22x 1.32x *
Including Interest on Deposits.................. 1.66 1.76 1.68 1.34 1.08 *
</TABLE>
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* Fixed charges exceeded earnings by $163 million (excluding interest on
deposits) and by $163 million (including interest on deposits) for the year
ended December 31, 1990.
For purposes of computing the consolidated ratios, earnings consist of
income before income taxes plus fixed charges (excluding capitalized interest)
and, where indicated, the pretax equivalents of dividends on preferred stock.
Fixed charges consist of interest on short-term debt and long-term debt
(including interest related to capitalized leases and capitalized interest) and
one-third of rent expense, which approximates the interest component of such
expense. In addition, where indicated, fixed charges include interest on
deposits.
6
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USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, Fleet
intends to use the net proceeds from the sale of the Securities for general
corporate purposes, principally to extend credit to, or fund investments in, its
subsidiaries. The precise amounts and timing of extensions of credit to, and
investments in, such subsidiaries will depend upon the subsidiaries' funding
requirements and the availability of other funds. Pending such applications, the
net proceeds may be temporarily invested in marketable securities or applied to
the reduction of Fleet's short-term indebtedness. Based upon the historic and
anticipated future growth of Fleet and the financial needs of its subsidiaries,
Fleet may engage in additional financings of a character and amount to be
determined as the need arises.
7
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either Senior Debt Securities or
Subordinated Debt Securities of Fleet. The Senior Debt Securities will be issued
under an indenture dated as of October 1, 1992 (the "Senior Indenture"), between
Fleet and The First National Bank of Chicago as Senior Trustee (the "Senior
Trustee"). The Subordinated Debt Securities will be issued under an indenture
dated as of October 1, 1992 (as supplemented by a First Supplemental Indenture
dated November 30, 1992, the "Subordinated Indenture"), between Fleet and The
First National Bank of Chicago as Subordinated Trustee (the "Subordinated
Trustee"). The Senior Indenture and Subordinated Indenture are collectively
referred to herein as the "Indentures". A copy of each of the Indentures are
exhibits to the Registration Statement of which this Prospectus forms a part.
The following description of Debt Securities relates to Debt Securities to be
issued in connection with either a United States Offering or an International
Offering, except, in the case of an International Offering, as otherwise
specified in the Prospectus Supplement relating thereto.
The following is a summary of all material terms set forth in the
Indentures. Such summaries do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all the provisions of the
Indentures, including the definitions therein of certain terms. Wherever
particular Sections or defined terms of the Indentures are referred to, it is
intended that such Sections or definitions shall be incorporated herein by
reference. The following sets forth certain general terms and provisions of the
Debt Securities to which any Prospectus Supplement may relate. The particular
terms of the Debt Securities offered by any Prospectus Supplement and the
extent, if any, to which such general provisions may apply to the Debt
Securities so offered, will be described in the Prospectus Supplement relating
to such Offered Securities.
Because Fleet is a holding company, its rights and the rights of its
creditors, including the Holders of the Debt Securities offered hereby, to
participate in the assets of any subsidiary upon the latter's liquidation or
reorganization will be subject to the prior claims of the subsidiary's creditors
except to the extent that Fleet may itself be a creditor with recognized claims
against the subsidiary.
GENERAL
The Debt Securities to be offered by this Prospectus are limited to the
amounts described on the cover of this Prospectus. Fleet expects from time to
time to incur additional indebtedness constituting Senior Indebtedness and Other
Financial Obligations (each as defined in the Subordinated Indenture). The
Indentures, however, do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provide that Debt Securities may
be issued from time to time in one or more series. The Debt Securities will be
unsecured obligations of Fleet. Neither the Indentures nor the Debt Securities
will limit or otherwise restrict the amount of other indebtedness (including
Other Financial Obligations) which may be incurred or other securities which may
be issued by Fleet or any of its subsidiaries. The Senior Debt Securities will
rank on a parity with all other unsecured unsubordinated indebtedness of Fleet
while the indebtedness represented by the Subordinated Debt Securities will be
subordinated as described below under "Subordinated Debt Securities".
As used herein, Debt Securities shall include securities denominated in U.S.
dollars or, at the option of Fleet if so specified in the applicable Prospectus
Supplement, in any other currency, including composite currencies such as the
ECU. Debt Securities of a series may be issuable in individual registered form
without coupons, in the form of one or more global securities, or, in bearer
form with or without coupons. Such bearer securities will be offered only to
non-United States persons and to offices located outside of the United States of
certain United States financial institutions.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms, where
applicable, of the Debt Securities in respect of which this
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Prospectus is being delivered: (1) the title of the Debt Securities; (2) the
limit, if any, on the aggregate principal amount or initial public offering
price of the Debt Securities; (3) the priority of payment of such Debt
Securities; (4) the price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Debt Securities will be
issued; (5) the date or dates on which the Debt Securities will mature; (6) the
rate or rates (which may be fixed or variable) per annum at which the Debt
Securities will bear interest, if any, or the method of determining the same;
(7) the date from which such interest, if any, on the Debt Securities will
accrue, the date or dates on which such interest, if any, will be payable, the
date on which payment of such interest, if any, will commence and the Regular
Record Dates for such Interest Payment Dates, if any; (8) the extent to which
any of the Debt Securities will be issuable in temporary or permanent global
form and, if so, the identity of the depositary for such global Debt Security,
or the manner in which any interest payable on a temporary or permanent global
Debt Security will be paid; (9) the dates, if any, on which, and the price or
prices at which, the Debt Securities will, pursuant to any mandatory sinking
fund provisions, or may, pursuant to any optional sinking fund or to any
purchase fund provisions, be redeemed by Fleet, and the other detailed terms and
provisions of such sinking and/or purchase funds; (10) the date, if any, after
which, and the price or prices at which, the Debt Securities may, pursuant to
any optional redemption provisions, be redeemed at the option of Fleet or of the
Holder thereof and the other detailed terms and provisions of such optional
redemption; (11) the denomination or denominations in which such Debt Securities
are authorized to be issued; (12) the currency, currencies or units (including
ECU) in which the Debt Securities are denominated, which may be in United States
dollars, a foreign currency or units of two or more foreign currencies; (13) the
currency, currencies or units (including ECU) for which the Debt Securities may
be purchased and in which principal, premium, if any, and interest may be
payable; (14) whether any of the Debt Securities will be issued in bearer form
and, if so, any limitations on issuance of such bearer Debt Securities
(including exchange for registered Debt Securities of the same series); (15)
information with respect to book-entry procedures; (16) whether any of the Debt
Securities will be issued as Original Issue Discount Securities; (17) any index
used to determine the amount of payments of principal of, premium, if any, and
interest on such Debt Securities; (18) each office or agency where, subject to
the terms of the applicable Indenture, such Debt Securities may be presented for
registration of transfer or exchange; (19) whether any of the Debt Securities
will be subject to defeasance in advance of the Redemption Date or Stated
Maturity thereof; (20) whether the subordination provisions summarized below or
different subordination provisions, including a different definition of "Senior
Indebtedness", "Entitled Persons", "Existing Subordinated Indebtedness", or
"Other Financial Obligations", shall apply to the Debt Securities; (21) whether
any of the Debt Securities will be convertible or exchangeable into other
securities of Fleet and the terms of such conversion or exchange, including the
conversion price and applicable conversion or expiration dates and (22) any
other terms of the series (which will not be inconsistent with the provisions of
the applicable Indenture).
Special federal income tax and other considerations relating to Debt
Securities denominated in foreign currencies or units of two or more foreign
currencies will be described in the applicable Prospectus Supplement. In the
event Fleet offers Debt Securities denominated in foreign currencies or units of
two or more foreign currencies, an opinion with respect to tax matters and
consent of counsel will be filed in a Form 8-K or as an amendment to the
Registration Statement of which this Prospectus forms a part.
Debt Securities may be issued as Original Issue Discount Securities (bearing
no interest or interest at a rate which at the time of issuance is below market
rates) to be sold at a substantial discount below their principal amount. In the
event of an acceleration of the maturity of any Original Issue Discount
Security, the amount payable to the Holder of such Original Issue Discount
Security upon such acceleration will be determined in accordance with the
applicable Prospectus Supplement, the terms of such security and the relevant
Indenture, but will be an amount less than the amount payable at the
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maturity of the principal of such Original Issue Discount Security. Special
federal income tax and other considerations relating thereto will be described
in the applicable Prospectus Supplement.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Debt Securities will be issued in registered form only, without
coupons. The Indentures, however, provide that Fleet may also issue Debt
Securities in bearer form only, or in both registered and bearer form. Debt
Securities issued in bearer form shall have interest coupons attached, unless
issued as zero coupon securities. Debt Securities in bearer form shall not be
offered, sold, resold or delivered in connection with their original issuance in
the United States or to any United States person (as defined below) other than
offices located outside the United States of certain United States financial
institutions. As used above, "United States person" means any citizen or
resident of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States, or any estate or
trust, the income of which is subject to United States federal income taxation
regardless of its source, and "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction. Purchasers of Debt
Securities in bearer form will be subject to certification procedures and may be
affected by certain limitations under United States tax laws. Such procedures
and limitations will be described in the Prospectus Supplement relating to the
offering of the Debt Securities in bearer form.
Debt Securities in registered form may be presented for transfer or exchange
(with form of transfer duly endorsed thereon) for other Debt Securities of the
same series at the offices of the Trustee according to the terms of the
applicable Indenture. In no event, however, will Debt Securities in registered
form be exchangeable for Debt Securities in bearer form. Fleet may designate the
main office of Fleet-RI, 111 Westminster Street, Providence, Rhode Island 02903,
as an office where the transfer of the Debt Securities may be registered.
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities issued in bearer form will be issued in denominations of $10,000 and
$50,000.
Unless otherwise indicated in the applicable Prospectus Supplement, the Debt
Securities issued in fully registered form will be issued without coupons and in
denominations of $1,000 or integral multiples thereof.
No service charge will be made for any transfer or exchange of the Debt
Securities but Fleet may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
PAYMENT AND PLACE OF PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on, Debt Securities in
registered form will be made at the office of the Trustee, except that at the
option of Fleet, interest may be paid by mailing a check to the address of the
person entitled thereto as it appears on the Security Register (Sections 301,
305 and 1002 in the Senior Indenture; Sections 3.01, 3.05 and 5.02 in the
Subordinated Indenture). Fleet may designate the main office of Fleet-RI, 111
Westminster Street, Providence, Rhode Island 02903, as an office where
principal, premium, if any, and interest, if any, may be paid.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on Debt Securities in
bearer form will be made, subject to any applicable laws and regulations, at
such office outside the United States as specified in the applicable Prospectus
Supplement and as Fleet may designate from time to time, at the option of the
Holder, by check or by transfer to an account maintained by the payee with a
bank located outside the United
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States. Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on Debt Securities in bearer form will be made only against
surrender of the coupon relating to such Interest Payment Date. No payment with
respect to any Debt Security in bearer form will be made at any office or agency
of Fleet in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depository (the "Depository") identified in
the Prospectus Supplement relating to such series. Global Securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for individual
certificates evidencing Debt Securities in definitive form represented thereby,
a Global Security may not be transferred except as a whole by the Depository for
such Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any such nominee to a successor of such Depository or a nominee of
such successor.
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series will be described in the Prospectus Supplement relating
to such series.
MODIFICATION AND WAIVER
Each Indenture provides that modifications and amendments thereof may be
made by Fleet and the Trustees with the consent of the Holders of 66 2/3% in
aggregate principal amount of the Outstanding Securities of each series under
such Indenture affected by such modification or amendment; provided, however,
that no such modification or amendment may, without the consent of the Holder of
each Outstanding Security affected thereby, (a) change the stated maturity date
of the principal of, or any installment of principal or interest on, any
Outstanding Security, (b) reduce the principal amount of, the rate of interest
thereon, or any premium payable upon the redemption thereof, (c) reduce the
amount of principal of an Original Issue Discount Security payable upon
acceleration of the maturity thereof, (d) change the place or currency of
payment of principal of, or any premium or interest on, any Outstanding
Security, (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Outstanding Security, or (f) reduce the
percentage in principal amount of Outstanding Securities of any series, the
consent of whose Holders is required for modification or amendment of the
Indenture or for waiver of compliance with certain provisions of the Indenture
or for waiver of certain defaults.
The Holders of 50% in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive, insofar as that series is concerned, compliance by Fleet
with certain restrictive provisions of the applicable Indenture. The Holders of
a majority in aggregate principal amount of the Outstanding Securities of each
series may, on behalf of all Holders of Debt Securities of that series, waive
any past default under the applicable Indenture with respect to Debt Securities
of that series, except a default in the payment of principal or any premium or
any interest or in respect of a provision which under the applicable Indenture
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of that series affected.
Modification and amendment of the Indentures may be made by Fleet and the
Trustee without the consent of any Holder for any of the following purposes: (i)
to evidence the succession of another Person to Fleet; (ii) to add to the
covenants of Fleet for the benefit of the Holders of all or any series of
Securities; (iii) to add Events of Default; (iv) to add or change any provisions
of any of the Indentures to facilitate the issuance of bearer securities; (v) to
change or eliminate any of the provisions of the applicable Indenture, provided
that any such change or elimination shall become effective only when
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there is no Outstanding Security of any series which is entitled to the benefit
of such provision; (vi) to establish the form or terms of Securities of any
series; (vii) to evidence and provide for the acceptance of appointment by a
successor Trustee; (viii) to cure any ambiguity, to correct or supplement any
provision in the applicable Indenture, or to make any other provisions with
respect to matters or questions arising under such Indenture, provided such
action shall not adversely affect the interests of Holders of Debt Securities of
any series in any material respect under such Indenture; (ix) to convey,
transfer, assign, mortgage or pledge any property to or with the Trustee or (x)
to provide for conversion rights of the Holders of the Securities of any series
to enable such Holders to convert such Securities into other securities of
Fleet.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless otherwise set forth in the applicable Prospectus Supplement, each
Indenture provides that Fleet may consolidate or merge with or into, or transfer
its assets substantially as an entirety to, any corporation organized under the
laws of any domestic jurisdiction, provided that the successor corporation
assumes Fleet's obligations on the Debt Securities under such Indenture, and
that after giving effect to the transaction no Event of Default, and no event
which, after notice or lapse of time, would become an Event of Default, shall
have occurred and be continuing, and that certain other conditions are met.
Neither Indenture provides for any right of acceleration in the event of a
consolidation, merger, sale of all or substantially all of the assets,
recapitalization or change in stock ownership of Fleet. In addition, the
Indentures do not contain any provision which would protect the Holders of Debt
Securities against a sudden and dramatic decline in credit quality resulting
from takeovers, recapitalizations or similar restructurings.
REGARDING THE TRUSTEE
Fleet maintains banking relations with the Trustee. In addition, Fleet's
banking subsidiaries maintain deposit accounts and correspondent banking
relations with the Trustee.
INTERNATIONAL OFFERING
If specified in the applicable Prospectus Supplement, Fleet may issue Debt
Securities in an International Offering. Such Debt Securities may be issued in
bearer form and will be described in the applicable Prospectus Supplement. If
such Debt Securities are Senior Debt Securities, such Debt Securities will be
issued pursuant to a supplement to the Senior Indenture. If Debt Securities are
issued in bearer form, the applicable Prospectus Supplement will contain the
relevant provisions.
In connection with any such International Offering, Fleet will designate
paying agents, registrars or other agents with respect to the Debt Securities,
as specified in the applicable Prospectus Supplement.
Debt Securities issued in an International Offering may be subject to
certain selling restrictions which will be described in the applicable
Prospectus Supplement. Such Debt Securities may be listed on one or more foreign
stock exchanges as described in the applicable Prospectus Supplement. Special
United States tax and other considerations, if any, applicable to an
International Offering will be described in the applicable Prospectus
Supplement.
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SENIOR DEBT SECURITIES
The Senior Debt Securities will be direct, unsecured obligations of Fleet
and will rank pari passu with all outstanding senior indebtedness of Fleet.
EVENTS OF DEFAULT
The following are Events of Default under the Senior Indenture with respect
to Senior Debt Securities of any series: (a) failure to pay principal of or any
premium on any Senior Debt Security of that series when due; (b) failure to pay
any interest on any Senior Debt Security of that series when due, continued for
30 days; (c) failure to deposit any sinking fund payment, when due, in respect
of any Senior Debt Security of that series; (d) failure to perform any other
covenant of Fleet in the Senior Indenture (other than any covenant included in
the Indenture solely for the benefit of a Series of Debt Securities other than
that Series), continued for 60 days after written notice as provided in the
Senior Indenture; (e) certain events in bankruptcy, insolvency or
reorganization; and (f) any other Event of Default provided with respect to
Senior Debt Securities of that series. (Section 501) If an Event of Default with
respect to Senior Debt Securities of any series at the time outstanding occurs
and is continuing, either the Senior Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if the Senior Debt Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Senior Debt Securities
of that series to be due and payable immediately. At any time after a
declaration of acceleration with respect to Senior Debt Securities of any series
has been made, but before a judgment or decree based on acceleration has been
obtained, the Holders of a majority in aggregate principal amount of Outstanding
Securities of that series may, on behalf of all Holders of that series, under
certain circumstances, rescind and annul such acceleration. (Section 502)
The Senior Indenture provides that, subject to the duty of the Senior
Trustee during default to act with the required standard of care, the Senior
Trustee will be under no obligation to exercise any of its rights or powers
under the Senior Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Senior Trustee reasonable
indemnity. (Section 603) Subject to such provisions for the indemnification of
the Senior Trustee, the Holders of a majority in aggregate principal amount of
the Outstanding Senior Debt Securities of any series will have the right to
direct the time, method and place of conducting any proceedings for any remedy
available to the Senior Trustee, or exercising any trust or power conferred on
the Senior Trustee, with respect to the Senior Debt Securities of that series.
(Section 512)
No Holder of any Senior Debt Security of any series will have any right to
institute any proceeding with respect to the Senior Indenture or for any remedy
thereunder, unless (a) such Holder shall have previously given to the Senior
Trustee written notice of a continuing Event of Default with respect to Senior
Debt Securities of that series, (b) the Holders of not less than 25% in
aggregate principal amount of the Outstanding Senior Debt Securities of that
series also shall have made written request and offered reasonable indemnity to
the Senior Trustee to institute such proceeding as trustee, (c) the Senior
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Senior Debt Securities of that series a direction
inconsistent with such request and (d) the Senior Trustee shall have failed to
institute such proceeding within 60 days. (Section 507) However, the Holder of
any Senior Debt Security will have an absolute right to receive payment of the
principal of (and premium, if any) and interest, if any, on such Senior Debt
Security on or after the due dates expressed in such Senior Debt Security and to
institute suit for the enforcement of any such payment. (Section 508)
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Fleet is required to furnish to the Senior Trustee annually a statement as
to performance by Fleet of certain of its obligations under the Indenture and as
to any default in such performance. (Section 1009)
RESTRICTIVE COVENANTS
Disposition of Voting Stock of Certain Subsidiaries. The Senior Indenture
contains a covenant that Fleet will not, and will not permit any Subsidiary (as
defined in the Senior Indenture) to sell, assign, pledge, transfer or otherwise
dispose of, or permit the issuance of any shares of Voting Stock (as defined in
the Senior Indenture) of, or any securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of Voting Stock of, a
Principal Constituent Bank (as defined below) or any Subsidiary which owns
shares of, or securities convertible into, or options, warrants or rights to
subscribe for or purchase shares of Voting Stock of a Principal Constituent
Bank, provided that dispositions made by Fleet or any Subsidiary (i) acting in a
fiduciary capacity for any person other than Fleet or any Subsidiary or (ii) to
Fleet or any of its wholly-owned (except for directors' qualifying shares)
Subsidiaries, shall not be prohibited. Notwithstanding the limitations described
above, the Senior Indenture provides that Fleet may, and may permit its
Subsidiaries to, sell, assign, pledge, transfer or otherwise dispose of, or
issue such shares or securities (1) if required by law for the qualification of
Directors, (2) for purposes of compliance with an order of a court or regulatory
authority, (3) if in connection with a merger of, or consolidation of, a
Principal Constituent Bank with or into a wholly-owned Subsidiary or a
Constituent Bank (as defined below), provided that Fleet holds, directly or
indirectly, in the entity surviving such merger or consolidation, not less than
the percentage of Voting Stock it held in the Principal Constituent Bank prior
to such action, (4) if such disposition or issuance is for fair market value
(determined by the Board of Directors of Fleet) and, if after giving effect to
such disposition or issuance (and any potential dilution), Fleet and its
wholly-owned Subsidiaries will own directly not less than 80% of the Voting
Stock of such Principal Constituent Bank or Subsidiary, (5) if a Principal
Constituent Bank sells additional shares of Voting Stock to its stockholders at
any price, if, after such sale, Fleet holds directly or indirectly not less than
the percentage of Voting Stock of such Principal Constituent Bank it owned prior
to such sale or (6) if Fleet or a Subsidiary pledges or creates a lien on the
Voting Stock of a Principal Constituent Bank to secure a loan or other extension
of credit by a Constituent Bank subject to Section 23A of the Federal Reserve
Act. A "Constituent Bank" is a Bank which is a Subsidiary. A "Principal
Constituent Bank" is Fleet-RI and any other Constituent Bank designated as a
Principal Constituent Bank. Any designation of a Constituent Bank as a Principal
Constituent Bank with respect to Debt Securities of any series shall remain
effective until the Debt Securities of such series are no longer outstanding. As
of the date of this Prospectus, no Constituent Banks (other than Fleet-RI) have
been designated as Principal Constituent Banks with respect to any series of
Debt Securities.
Limitation Upon Liens on Certain Capital Stock. The Senior Indenture
contains a covenant that Fleet will not at any time, directly or indirectly,
create, assume, incur or suffer to be created, assumed or incurred or to exist
any mortgage, pledge, encumbrance or lien or charge of any kind upon (1) any
shares of capital stock of any Principal Constituent Bank (other than directors'
qualifying shares), or (2) any shares of capital stock of a Subsidiary which
owns capital stock of any Principal Constituent Bank; provided, however, that,
notwithstanding the foregoing, Fleet may incur or suffer to be incurred or to
exist upon such capital stock (a) liens for taxes, assessments or other
governmental charges or levies which are not yet due or are payable without
penalty or of which the amount, applicability or validity is being contested by
Fleet in good faith by appropriate proceedings and Fleet shall have set aside on
its books adequate reserves with respect thereto or (b) the lien of any
judgement, if such judgment shall not have remained undischarged, or unstayed on
appeal or otherwise, for more than 60 days.
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DEFEASANCE
Fleet may terminate certain of its obligations under the Senior Indenture
with respect to the Senior Debt Securities of any series on the terms and
subject to the conditions contained in the Senior Indenture, by (a) depositing
irrevocably with the Senior Trustee as trust funds in trust (i) in the case of
Senior Debt Securities denominated in a foreign currency, money in such foreign
currency or Foreign Government Obligations (as defined below) of the foreign
government or governments issuing such foreign currency, or (ii) in the case of
Senior Debt Securities denominated in U.S. dollars, U.S. dollars or U.S.
Government Obligations (as defined below), in each case in an amount which
through the payment of interest, principal or premium, if any, in respect
thereof in accordance with their terms will provide (without any reinvestment of
such interest, principal or premium), not later than one business day before the
due date of any payment, money or (iii) a combination of money and U.S.
Government Obligations or Foreign Government Obligations, as applicable,
sufficient to pay the principal of or premium, if any, and interest on, the
Senior Debt Securities of such series as such are due and (b) satisfying certain
other conditions precedent specified in the Senior Indenture. Such deposit and
termination is conditioned among other things upon Fleet's delivery of (a) an
opinion of independent counsel that the Holders of the Senior Debt Securities of
such series will have no federal income tax consequences as a result of such
deposit and termination and (b) if the Senior Debt Securities of such series are
then listed on the New York Stock Exchange, an opinion of counsel that the
Senior Debt Securities of such series will not be delisted as a result of the
exercise of this option. Such termination will not relieve Fleet of its
obligation to pay when due the principal of, and interest on, certain of the
Senior Debt Securities as provided in the Indenture. (Section 403)
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof. "Foreign Government Obligations" means securities denominated in a
Foreign Currency that are (i) direct obligations of a foreign government for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
a foreign government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such foreign government, which, in either
case, under clauses (i) or (ii) are not callable or redeemable at the option of
the issuer thereof.
SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be direct, unsecured obligations of
Fleet and, unless otherwise specified in the applicable Prospectus Supplement,
will rank pari passu with all outstanding subordinated indebtedness of Fleet.
SUBORDINATION
The payment of the principal of and interest on the Subordinated Debt
Securities will, to the extent set forth in the Subordinated Indenture, be
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness (as defined in the Subordinated Indenture). In certain events of
insolvency, the payment of the principal of and interest on the Subordinated
Debt Securities will, to the extent set forth in the Subordinated Indenture,
also be effectively subordinated in right of payment to the prior payment in
full of all Other Financial Obligations (as defined in the Subordinated
Indenture). Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings of the Company, the holders of all Senior Indebtedness will first be
entitled to receive payment in full of all amounts due or to become due thereon
before the Holders of the
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Subordinated Debt Securities will be entitled to receive any payment in respect
of the principal of or interest on the Subordinated Debt Securities. If upon any
such payment or distribution of assets to creditors, there remain, after giving
effect to such subordination provisions in favor of the holders of Senior
Indebtedness, any amounts of cash, property or securities available for payment
or distribution in respect of Subordinated Debt Securities (as defined in the
Subordinated Indenture, "Excess Proceeds") and if, at such time, any Entitled
Persons (as defined in the Subordinated Indenture) in respect of Other Financial
Obligations have not received payment in full of all amounts due or to become
due on or in respect of such Other Financial Obligations, then such Excess
Proceeds shall first be applied to pay or provide for the payment in full of
such Other Financial Obligations before any payment or distribution may be made
in respect of the Subordinated Debt Securities. In the event of the acceleration
of the maturity of any Debt Securities, the holders of all Senior Indebtedness
will first be entitled to receive payment in full of all amounts due thereon
before the Holders of the Subordinated Debt Securities will be entitled to
receive any payment upon the principal of or interest on the Subordinated Debt
Securities.
In addition, no payment may be made of the principal of, premium, if any, or
interest on the Subordinated Debt Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Subordinated Debt
Securities, at any time when (i) there is a default in the payment of the
principal of, premium, if any, interest on or otherwise in respect of any Senior
Indebtedness, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise, or (ii) any event of default with respect to any
Senior Indebtedness has occurred and is continuing, or would occur as a result
of such payment on the Subordinated Debt Securities or any redemption,
retirement, purchase or other acquisition of any of the Subordinated Debt
Securities, permitting the Holders of such Senior Indebtedness (or a trustee on
behalf of the Holders thereof) to accelerate the maturity thereof.
By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of insolvency, creditors of Fleet who are not holders
of Senior Indebtedness or of the Subordinated Debt Securities may recover less,
ratably, than Holders of Senior Indebtedness and may recover more, ratably, than
the Holders of the Subordinated Debt Securities. By reason of the obligation of
the Holders of Subordinated Debt Securities to pay over any Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations, in the event of
insolvency, holders of Existing Subordinated Indebtedness (as defined in the
Subordinated Indenture) may recover more, ratably, than the Holders of
Subordinated Debt Securities.
Unless otherwise specified in the Prospectus Supplement relating to the
particular series of Subordinated Debt Securities offered thereby, Senior
Indebtedness is defined in the Subordinated Indenture as (a) the principal of,
premium, if any, and interest on all of Fleet's indebtedness for money borrowed,
whether outstanding on the date of execution of the Subordinated Indenture or
thereafter created, assumed or incurred, except (i) the Existing Subordinated
Indebtedness and other Subordinated Debt Securities issued under the
Subordinated Indenture, (ii) such indebtedness as is by its terms expressly
stated to be junior in right of payment to the Subordinated Debt Securities and
(iii) such indebtedness as is by its terms expressly stated to rank pari passu
with the Subordinated Debt Securities and (b) any deferrals, renewals or
extensions of any such Senior Indebtedness. (Section 1.01). The Term
"indebtedness for money borrowed" when used with respect to Fleet is defined to
include, without limitation, any obligation of, or any obligation guaranteed by,
Fleet for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, and any deferred obligation of,
or any such obligation guaranteed by, Fleet for the payment of the purchase
price of property or assets. (Section 1.01).
Existing Subordinated Indebtedness means Fleet's Subordinated Notes Due
1997, Floating Rate Subordinated Capital Notes Due 1998, 9.90% Subordinated
Notes Due 2001, 9% Subordinated Notes Due 2001, 8 1/8% Subordinated Notes Due
2004 and 8 5/8% Subordinated Notes Due 2007. As of the date of this Prospectus,
Fleet also had issued its 7 5/8% Subordinated Notes Due 1999 and 6 7/8%
Subordinated Notes Due 2003, each of which was issued under the Subordinated
Indenture and is junior in right of payment to all of Fleet's Senior
Indebtedness and Other Financial Obligations.
16
<PAGE>
Unless otherwise specified in the Prospectus Supplement relating to the
particular series of Subordinated Debt Securities offered thereby, Other
Financial Obligations means all obligations of Fleet to make payment pursuant to
the terms of financial instruments, such as (i) securities contracts and foreign
currency exchange contracts, (ii) derivative instruments, such as swap
agreements (including interest rate and foreign exchange rate swap agreements),
cap agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange rate agreements, options, commodity futures contracts,
commodity option contracts and (iii) in the case of both (i) and (ii) above,
similar financial instruments, other than (A) obligations on account of Senior
Indebtedness and (B) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Subordinated Debt Securities.
Unless otherwise specified in the Prospectus Supplement relating to the
particular series of Subordinated Debt Securities offered thereby, Entitled
Persons means any person who is entitled to payment pursuant to the terms of
Other Financial Obligations.
Any Prospectus Supplement relating to a particular series of Subordinated
Debt Securities will set forth the aggregate amount of indebtedness of Fleet
senior to the Subordinated Debt Securities as of a recent practicable date.
Fleet's obligations under the Subordinated Debt Securities shall rank pari
passu in right of payment with each other and with the Existing Subordinated
Indebtedness, subject to the obligations of the Holders of Subordinated Debt
Securities to pay over any Excess Proceeds to Entitled Persons in respect of
Other Financial Obligations as provided in the Subordinated Indenture.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness or Other Financial Obligations, which may include
indebtedness that is senior to the Subordinated Debt Securities, but subordinate
to other obligations of Fleet.
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
Except as described above or in the Subordinated Indenture, the obligation
of Fleet to make payment of the principal of, premium, if any, or interest on
the Subordinated Debt Securities will not be affected by reason of such
subordination. In the event of a distribution of assets upon any dissolution,
winding up, liquidation or reorganization, certain general creditors of Fleet
may recover more, ratably, than Holders of the Subordinated Debt Securities.
Subject to payment in full of all Senior Indebtedness, the rights of the Holders
of Subordinated Debt Securities will be subrogated to the rights of the Holders
of Senior Indebtedness to receive payments or distribution of cash, property or
securities of Fleet applicable to Senior Indebtedness. Subject to the payment in
full of all Other Financial Obligations, the rights of the Holders of
Subordinated Debt Securities will be subrogated to the rights of Entitled
Persons to receive payments or distributions of cash, property or securities of
Fleet applicable to Other Financial Obligations. (Sections 14.02 and 14.10)
LIMITED RIGHTS OF ACCELERATION
Unless otherwise specified in the Prospectus Supplement relating to any
series of Subordinated Debt Securities, payment of principal of the Subordinated
Debt Securities may be accelerated only in case of certain events involving the
bankruptcy, insolvency or reorganization of Fleet which constitutes an Event of
Default (as defined below). There is no right of acceleration in the case of a
default in the payment of principal of, premium, if any, or interest on the
Subordinated Debt Securities or the performance of any other covenant of Fleet
in the Subordinated Indenture.
RESTRICTIVE COVENANTS
The Prospectus Supplement relating to a series of Subordinated Debt
Securities may describe certain restrictive covenants, if any, to which Fleet
may be bound under the Subordinated Indenture.
17
<PAGE>
EVENTS OF DEFAULT, DEFAULTS, WAIVERS
An "Event of Default" with respect to Subordinated Debt Securities of any
series is defined in the Subordinated Indenture as certain events involving the
bankruptcy or reorganization of Fleet and any other Event of Default provided
with respect to Subordinated Debt Securities of such series. (Section 7.01) A
"Default" with respect to Subordinated Debt Securities of any series is defined
in the Subordinated Indenture as (a) an Event of Default with respect to such
series; (b) failure to pay the principal of, or premium, if any, on any
Subordinated Security of such series at its Maturity; (c) failure to pay
interest upon any Subordinated Security of such series when due and payable and
the continuance of such Default for a period of 30 days; (d) failure to perform
any other covenant or agreement of Fleet in the Subordinated Indenture with
respect to Subordinated Debt Securities of such series and continuance of such
Default for 60 days after written notice of such failure, requiring Fleet to
remedy the same; and (e) any other Default provided with respect to Subordinated
Debt Securities of such series. (Section 7.07) If an Event of Default with
respect to any series of Subordinated Debt Securities for which there are
Subordinated Debt Securities outstanding under the Subordinated Indenture occurs
and is continuing, either the Subordinated Trustee or the Holders of not less
than 25% in aggregate principal amount of the Subordinated Debt Securities of
such series may declare the principal amount (or if such Subordinated Debt
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all Subordinated Debt
Securities of that series to be immediately due and payable. The Holders of a
majority in aggregate principal amount of the Subordinated Debt Securities of
any series outstanding under the Subordinated Indenture may waive, on behalf of
all Holders of such series, an Event of Default resulting in acceleration of
such Subordinated Debt Securities, but only if all Defaults have been remedied
and all payments due (other than those due as a result of acceleration) have
been made. (Section 7.02) If a Default occurs and is continuing, the
Subordinated Trustee may in its discretion, and at the written request of
Holders of not less than a majority in aggregate principal amount of the
Subordinated Debt Securities of any series outstanding under the Subordinated
Indenture and upon reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request and subject to
certain other conditions set forth in the Subordinated Indenture shall, proceed
to protect the rights of the Holders of all the Subordinated Debt Securities of
such series. (Section 7.03) Prior to acceleration of maturity of the
Subordinated Debt Securities of any series outstanding under the Subordinated
Indenture, the Holders of a majority in aggregate principal amount of such
Subordinated Debt Securities may waive any past Default under the Subordinated
Indenture except a Default in the payment of principal of, premium, if any, or
interest on the Subordinated Debt Securities of such series or in respect of a
covenant which cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected. (Section 7.13)
The Subordinated Indenture provides that in the event of a Default specified
in clauses (b) or (c) of the immediately preceding paragraph in payment of
principal of, premium, if any, or interest on any Subordinated Debt Security of
any series, Fleet will, upon demand of the Subordinated Trustee, pay to it, for
the benefit of the holder of any such Subordinated Debt Security, the whole
amount then due and payable on such Subordinated Debt Security for principal,
premium, if any, and interest. The Subordinated Indenture further provides that
if Fleet fails to pay such amount forthwith upon such demand, the Subordinated
Trustee may, among other things, institute a judicial proceeding for the
collection thereof. (Section 7.03)
The Subordinated Indenture also provides that notwithstanding any other
provision of the Subordinated Indenture, the holder of any Subordinated Debt
Security of any series shall have the right to institute suit for the
enforcement of any payment of principal of, premium, if any, and interest on
such Subordinated Debt Security on the respective Stated Maturities (as defined
in the Subordinated Indenture) expressed in such Subordinated Debt Security and
that such right shall not be impaired without the consent of such holder.
(Section 7.08)
Fleet is required to furnish to the Subordinated Trustee annually a
statement as to performance by Fleet of certain of its obligations under the
Subordinated Indenture and as to any Default in such performance. (Section 5.10)
18
<PAGE>
DESCRIPTION OF WARRANTS
Fleet may issue Warrants for the purchase of Debt Securities. Warrants may
be issued independently or together with Debt Securities offered by any
Prospectus Supplement and may be attached to or separate from any such
Securities. Each series of Warrants will be issued under a separate warrant
agreement (a "Warrant Agreement") to be entered into between Fleet and a bank or
trust company, as warrant agent (the "Warrant Agent"). The Warrant Agent will
act solely as an agent of the Company in connection with the Warrants and will
not assume any obligation or relationship of agency or trust for or with any
holders or beneficial owners of Warrants. The following summary of certain
provisions of the Warrants does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the provisions of the Warrant
Agreement that will be filed with the Commission in connection with the offering
of such Warrants.
The Prospectus Supplement relating to a particular issue of Warrants will
describe the terms of such Warrants, including the following: (a) the title of
such Warrants; (b) the offering price for such Warrants, if any; (c) the
aggregate number of such Warrants; (d) the designation and terms of the Debt
Securities purchasable upon exercise of such Warrants; (e) if applicable, the
designation and terms of the Debt Securities with which such Warrants are issued
and the number of such Warrants issued with each such Debt Security; (f) if
applicable, the date from and after which such Warrants and any Debt Securities
issued therewith will be separately transferable; (g) the principal amount of
Debt Securities purchasable upon exercise of a Warrant and the price at which
such principal amount of Debt Securities may be purchased upon exercise (which
price may be payable in cash, securities, or other property); (h) the date on
which the right to exercise such Warrants shall commence and the date on which
such right shall expire; (i) if applicable, the minimum or maximum amount of
such Warrants that may be exercised at any one time; (j) whether the Warrants
represented by the Warrant certificates or Debt Securities that may be issued
upon exercise of the Warrants will be issued in registered or bearer form; (k)
information with respect to book-entry procedures, if any; (l) the currency or
currency units in which the offering price, if any, and the exercise price are
payable; (m) if applicable, a discussion of material United States Federal
income tax considerations; (n) the antidilution provisions of such Warrants, if
any; (o) the redemption or call provisions, if any, applicable to such Warrants;
and (p) any additional terms of the Warrants, including terms, procedures, and
limitations relating to the exchange and exercise of such Warrants.
19
<PAGE>
PLAN OF DISTRIBUTION
Fleet may sell Securities to or through underwriters, and also may sell
Securities through agents (which are registered broker-dealers or banks) which
may be affiliates.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from time
to time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Securities. Certain
restrictions relating to the distribution of Securities in connection with an
International Offering will be set forth in the applicable Prospectus
Supplement.
In connection with the sale of Securities, underwriters or agents acting on
Fleet's behalf may receive compensation from Fleet or from purchasers of
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers and agents that
participate in the distribution of Securities may be deemed to be underwriters
under the Act and any discounts or commissions received by them and any profits
on the resale of Securities by them may be deemed to be underwriting discounts
and commissions under the Act. Any such underwriter will be identified and any
such compensation will be described in the applicable Prospectus Supplement.
Under agreements which may be entered into by Fleet, underwriters, dealers
and agents who participate in the distribution of Securities may be entitled to
indemnification by Fleet against certain liabilities, including liabilities
under the Act, and to certain rights of contribution from Fleet.
If so indicated in the applicable Prospectus Supplement, Fleet will
authorize underwriters or other persons acting as Fleet's agents to solicit
offers by certain institutions to purchase Debt Securities or Warrants from
Fleet pursuant to delayed delivery contracts providing for payment and delivery
on a future date or dates stated in the applicable Prospectus Supplement. Each
such contract will be for an amount not less than, and the aggregate amount of
such securities sold pursuant to such contracts shall not be less nor more than,
the respective amounts stated in the applicable Prospectus Supplement.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by Fleet. The obligations of any purchaser under
any such contract will not be subject to any condition except that (1) the
purchase of the Debt Securities or Warrants shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject, and (2) if the Debt Securities or Warrants are also being sold to
underwriters acting as principals for their own account, the underwriters shall
have purchased such Debt Securities or Warrants not sold for delayed delivery.
The underwriters and such other persons will not have any responsibility in
respect of the validity or performance of such contracts.
Certain of the underwriters and their associates and affiliates may be
customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for, Fleet
or one or more of its affiliates in the ordinary course of business.
EXPERTS
The consolidated financial statements of Fleet appearing in Fleet's 1994
Annual Report to Stockholders and incorporated by reference in Fleet's 1994
Annual Report on Form 10-K for the year ended December 31, 1994 (as amended by a
Form 10-K/A dated April 28, 1995), incorporated by reference herein (and
elsewhere in the Registration Statement) have been incorporated by reference
herein (and elsewhere in the Registration Statement) in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, and upon the
authority of said firm as experts in accounting and auditing. The report of KPMG
Peat Marwick LLP covering the December 31, 1994 financial statements refers to a
change in the method of accounting for investments.
20
<PAGE>
The consolidated financial statements of Shawmut incorporated in this
Prospectus by reference to Fleet's Current Report on Form 8-K dated April 13,
1995, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL OPINIONS
The validity of the Notes offered hereby will be passed upon for Fleet by
Edwards & Angell, One Hospital Trust Plaza, Providence, Rhode Island 02903, and
for the Underwriters by Cravath, Swaine & Moore, 825 Eighth Avenue, New York,
New York 10019. V. Duncan Johnson, a partner of Edwards & Angell, is a director
of Fleet-RI, Fleet-MA and Fleet-CT and beneficially owns 4,052 shares of Common
Stock.
21
<PAGE>
- ---------------------------------------- -------------------------------------
- ---------------------------------------- -------------------------------------
NO DEALER, SALESPERSON OR OTHER
INDIVIDUAL HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CON- $750,000,000
TAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS IN CONNECTION WITH THE OFFER
MADE BY THIS PROSPECTUS SUPPLEMENT [LOGO]
AND THE PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESEN-
TATIONS MUST NOT BE RELIED UPON AS FLEET FINANCIAL
HAVING BEEN AUTHORIZED BY FLEET OR GROUP, INC.
BY THE UNDERWRITERS. NEITHER THE
DELIVERY OF THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS NOR
ANY SALE MADE HEREUNDER AND
THEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION
THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF FLEET SINCE
THE DATE HEREOF. THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS DO NOT
CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY STATE IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED OR
IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO
DO SO OR TO ANYONE TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION.
-------------------
TABLE OF CONTENTS
PAGE
----
PROSPECTUS
Available Information.......... 2
Incorporation of Certain Documents
by Reference................. 2
Fleet Financial Group, Inc..... 3
Consolidated Ratios of Earnings to -------------------
Fixed Charges................ 6
Use of Proceeds................ 7 DEBT SECURITIES
Description of Debt Securities. 8
Senior Debt Securities......... 12 PROSPECTUS
Subordinated Debt Securities... 15
Description of Warrants........ 19 -------------------
Plan of Distribution........... 20
Experts........................ 20
Legal Opinions................. 21
, 1995
- ---------------------------------------- -------------------------------------
- ---------------------------------------- -------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED , 1995
PROSPECTUS
COMMON STOCK, COMMON STOCK WARRANTS, PREFERRED STOCK, DEPOSITARY SHARES, AND
PREFERRED STOCK WARRANTS
FLEET FINANCIAL GROUP, INC.
Fleet Financial Group, Inc., a Rhode Island corporation ("Fleet"), may offer
from time to time (a) shares of Common Stock, par value $1.00 per share,
including the associated Preferred Share Purchase Rights (the "Common Stock"),
(b) shares of preferred stock, par value $1.00 per share (the "Preferred
Stock"), including, at its option, depositary shares (the "Depositary Shares")
evidenced by depositary receipts (the "Depositary Receipts") each representing a
fractional interest in such Preferred Stock and (c) warrants to purchase Common
Stock (the "Common Stock Warrants") or Preferred Stock (the "Preferred Stock
Warrants", together with the Common Stock Warrants, the "Warrants"), having a
public offering price of up to an aggregate of $750,000,000 (or the equivalent
thereof if any of the Securities are denominated in a foreign currency or a
foreign currency unit, such as European Currency Units ("ECU")). The Common
Stock, Preferred Stock, Depositary Shares and Warrants (collectively, the
"Securities") may be offered separately or as units with other securities, in
separate series, in amounts and at prices and terms to be set forth in an
accompanying Prospectus Supplement (a "Prospectus Supplement"). Pursuant to the
terms of the Registration Statement of which this Prospectus constitutes a part,
Fleet may also offer and sell its unsecured debt securities, which may be either
senior or subordinated, or warrants to purchase debt securities (the "Debt
Securities"). Any such Debt Securities will be offered and issued pursuant to
the terms of a separate Prospectus contained in such Registration Statement. The
aggregate amount of Securities that may be offered and sold pursuant hereto is
subject to reduction as the result of the sale of any Debt Securities pursuant
to such separate Prospectus.
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the accompanying Prospectus Supplement,
together with the terms of the offering of the Securities and the initial price
and net proceeds to Fleet from the sale thereof. The Prospectus Supplement will
include, with regard to the particular Securities, the following information:
(i) in the case of Preferred Stock, the specific number of shares, title, stated
value and liquidation preference of each share, issuance price, dividend rate
(or method of calculation), dividend payment dates, any redemption or sinking
fund provisions, any conversion or exchange provisions and whether fractional
interests in shares of Preferred Stock will be represented by Depositary Shares;
(ii) in the case of Common Stock, the specific number of shares and issuance
price for such shares; (iii) in the case of Warrants, the duration, offering
price, exercise price and detachability of any such warrants; and (iv) in the
case of all Securities, whether such Securities will be offered separately or as
a unit with other securities. The Prospectus Supplement will also contain
information, where applicable, about certain United States federal income tax
considerations relating to, and any listing on a securities exchange of, the
Securities covered by the Prospectus Supplement.
Fleet may sell Securities to or through underwriters or dealers, and also
may sell Securities directly to other purchasers or through agents. See "Plan of
Distribution". If any agents or underwriters are involved in the sale of any of
the Securities, their names, any applicable fee, commission, purchase price or
discount arrangements with them will be set forth, or will be calculable from
the information set forth, in the Prospectus Supplement. Fleet may sell
Securities in an offering within the United States ("United States Offering") or
outside the United States ("International Offering").
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALE OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
THE SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF
ANY BANK OR NONBANK SUBSIDIARY OF FLEET AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
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 , 1995.
<PAGE>
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.
<PAGE>
AVAILABLE INFORMATION
Fleet 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"). Proxy statements, reports
and other information concerning Fleet can be inspected and copied at the
Commission's office at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and the Commission's Regional Offices in New York (Suite
1300, Seven World Trade Center, New York, New York 10048) and Chicago
(Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661), and copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Common Stock is listed on the New York Stock
Exchange. Reports, proxy material and other information concerning Fleet also
may be inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005. This Prospectus does not contain all the information
set forth in the Registration Statement and Exhibits thereto which Fleet has
filed with the Commission under the Securities Act of 1933, as amended (the
"Act"), which may be obtained from the Public Reference Section of the
Commission at its principal office at 450 Fifth Street, N.W., Washington, D.C.
20549, upon payment of the prescribed fees, and to which reference is hereby
made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Fleet are incorporated
in this Prospectus by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1994, as
amended by a Form 10-K/A dated April 28, 1995.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995,
June 30, 1995, and September 30, 1995.
3. Current Reports on Form 8-K dated January 18, 1995, January 27, 1995,
February 20, 1995, February 21, 1995, April 13, 1995, May 11, 1995,
May 17, 1995, June 21, 1995, August 11, 1995, August 23, 1995, October
18, 1995, October 26, 1995 and November 16, 1995.
4. The description of the Common Stock contained in a Registration
Statement filed by Industrial National Corporation (predecessor to
Fleet) on Form 8-B dated May 29, 1970, and any amendment or report
filed for the purpose of updating such description.
5. The description of the Preferred Share Purchase Rights contained in
Fleet's Registration Statement on Form 8-A dated November 29, 1990,
and any amendment or report filed for the purpose of updating such
description.
Such incorporation by reference shall not be deemed to specifically
incorporate by reference the information referred to in Item 402(a)(8) of
Regulation S-K.
All documents filed with the Commission by Fleet pursuant to Sections 13, 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities offered hereby are
incorporated herein by reference and such documents shall be deemed to be a part
hereof from the date of filing of such documents. Any statement contained in
this Prospectus or in a document incorporated or deemed to be incorporated by
reference herein 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 document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN, WITHOUT CHARGE,
UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN (OTHER THAN THE EXHIBITS TO SUCH DOCUMENTS). WRITTEN REQUESTS
SHOULD BE MAILED TO INVESTOR RELATIONS DEPARTMENT, FLEET FINANCIAL GROUP, INC.,
50 KENNEDY PLAZA, PROVIDENCE, RHODE ISLAND 02903. TELEPHONE REQUESTS MAY BE
DIRECTED TO (401) 278-5800.
2
<PAGE>
FLEET FINANCIAL GROUP, INC.
GENERAL
Fleet is a diversified financial services company organized under the laws
of the State of Rhode Island. At September 30, 1995, Fleet was the 16th largest
banking institution in the United States in terms of total assets, with total
assets of $50.9 billion, total deposits of $32.4 billion and stockholders'
equity of $4.4 billion.
Fleet is engaged in a general commercial banking and trust business
throughout the states of New York, Rhode Island, Connecticut, Massachusetts,
Maine and New Hampshire through its banking subsidiaries, Fleet Bank
("Fleet-NY"); Fleet National Bank ("Fleet-RI"); Fleet Bank, National Association
("Fleet-CT"); Fleet Bank of Massachusetts, National Association ("Fleet-MA");
Fleet Bank of Maine and Fleet Bank-NH.
Fleet provides, through its nonbanking subsidiaries, a variety of financial
services, including mortgage banking, asset-based lending, equipment leasing,
consumer finance, real estate financing, securities brokerage services,
investment banking, investment advice and management, data processing and
student loan servicing.
On February 20, 1995, Fleet and Shawmut National Corporation ("Shawmut")
entered into an Agreement and Plan of Merger (the "Merger Agreement") providing
for the merger of Shawmut with and into Fleet (the "Merger"). For additional
information regarding the Merger and certain pro forma financial information
relating thereto, see Fleet's Current Reports on Form 8-K dated February 20,
1995, February 21, 1995, April 13, 1995, May 17, 1995, June 21, 1995, August 11,
1995, August 23, 1995 and November 16, 1995.
The principal office of Fleet is located at 50 Kennedy Plaza, Providence,
Rhode Island 02903, telephone number (401) 278-5800.
REGULATORY MATTERS
General. Fleet is a legal entity separate and distinct from its
subsidiaries. The ability of holders of debt and equity securities of Fleet,
including the holders of the Securities offered hereby, to benefit from the
distribution of assets of any subsidiary upon the liquidation or reorganization
of such subsidiary is subordinate to prior claims of creditors of the subsidiary
(including depositors in the case of banking subsidiaries) except to the extent
that a claim of Fleet as a creditor may be recognized.
There are various statutory and regulatory limitations on the extent to
which banking subsidiaries of Fleet can finance or otherwise transfer funds to
Fleet or its nonbanking subsidiaries, whether in the form of loans, extensions
of credit, investments or asset purchases. Such transfers by any subsidiary bank
to Fleet or any nonbanking subsidiary are limited in amount to 10% of the bank's
capital and surplus and, with respect to Fleet and all such nonbanking
subsidiaries, to an aggregate of 20% of each such bank's capital and surplus.
Furthermore, loans and extensions of credit are required to be secured in
specified amounts and are required to be on terms and conditions consistent with
safe and sound banking practices.
In addition, there are regulatory limitations on the payment of dividends
directly or indirectly to Fleet from its banking subsidiaries. Under applicable
banking statutes, at September 30, 1995, Fleet's banking subsidiaries could have
declared additional dividends of approximately $446 million, of which
$121 million could have been declared by Fleet-MA and Fleet-CT. Holders of
Fleet's dual convertible preferred stock are entitled to dividends equal to
one-half of the total common dividends declared (after the first $15 million
in common dividends) to Fleet, if any, by Fleet Banking Group, Inc. ("Fleet
Banking Group"), a wholly-owned subsidiary of Fleet and the holder of all of the
outstanding common stock of each of Fleet-MA and Fleet-CT. As of the date of the
Prospectus Supplement, Fleet Banking Group has not paid any dividends on its
common stock to Fleet. Federal and state regulatory agencies also have the
authority to limit further Fleet's banking subsidiaries' payment of dividends
based on other factors, such as the maintenance of adequate capital for such
subsidiary bank.
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Under the policy of the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board"), Fleet is expected to act as a source of financial
strength to each subsidiary bank and to commit resources to support such
subsidiary bank in circumstances where it might not do so absent such policy. In
addition, any subordinated loans by Fleet to any of the subsidiary banks would
also be subordinate in right of payment to deposits and obligations to general
creditors of such subsidiary bank. Further, the Crime Control Act of 1990
amended the federal bankruptcy laws to provide that in the event of the
bankruptcy of Fleet, any commitment by Fleet to its regulators to maintain the
capital of a banking subsidiary will be assumed by the bankruptcy trustee and
entitled to a priority of payment.
FIRREA.
As a result of the enactment of the Financial Institutions Reform, Recovery
and Enforcement Act ("FIRREA") on August 9, 1989, any or all of Fleet's
subsidiary banks can be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC after August 9, 1989, in connection with
(a) the default of any other of Fleet's subsidiary banks or (b) any assistance
provided by the FDIC to any other of Fleet's subsidiary banks in danger of
default. "Default" is defined generally as the appointment of a conservator or
receiver and "in danger of default" is defined generally as the existence of
certain conditions indicating that a "default" is likely to occur without
regulatory assistance.
FDICIA.
The Federal Deposit Insurance Corporation Improvement Act of 1991 (the
"FDICIA"), which was enacted on December 19, 1991, provides for, among other
things, increased funding for the Bank Insurance Fund (the "BIF") of the FDIC
and expanded regulation of depository institutions and their affiliates,
including parent holding companies. A summary of certain provisions of FDICIA
and its implementing regulations is provided below.
Prompt Corrective Action. The FDICIA provides the federal banking agencies
with broad powers to take prompt corrective action to resolve problems of
insured depository institutions, depending upon a particular institution's level
of capital. The FDICIA establishes five tiers of capital measurement for
regulatory purposes ranging from "well-capitalized" to "critically
undercapitalized." A depository institution may be deemed to be in a
capitalization category that is lower than is indicated by its actual capital
position under certain circumstances. At September 30, 1995, each of Fleet's
subsidiary depository institutions was classified as "well-capitalized" under
the prompt corrective action regulations described above.
Brokered Deposits. Under the FDICIA, a depository institution that is
well-capitalized may accept brokered deposits. A depository institution that is
adequately capitalized may accept brokered deposits only if it obtains a waiver
from the FDIC, and may not offer interest rates on deposits "significantly
higher" than the prevailing rate in its market. An undercapitalized depository
institution may not accept brokered deposits. In Fleet's opinion, these
limitations do not have a material effect on Fleet.
Safety and Soundness Standards. The FDICIA, as amended, directs each federal
banking agency to prescribe safety and soundness standards for depository
institutions relating to internal controls, information systems, internal audit
systems, loan documentation, credit underwriting, interest rate exposure, asset
growth, compensation, asset-quality, earnings and stock valuation. Final
interagency regulations to implement these new safety and soundness standards
have recently been adopted by the federal banking agencies. In July 1995, the
federal banking agencies published proposed guidelines establishing safety and
soundness standards concerning asset quality and earnings. If adopted in final
form, these proposed guidelines will be incorporated into the Interagency
Guidelines Establishing Standards for Safety and Soundness. The ultimate
cumulative effect of these standards cannot currently be forecast.
The FDICIA also contains a variety of other provisions that may affect
Fleet's operations, including new reporting requirements, regulatory standards
for real estate lending, "truth in savings" provisions, and the requirement that
a depository institution give 90 days' prior notice to customers and regulatory
authorities before closing any branch.
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Capital Guidelines
Under the Federal Reserve Board's capital guidelines, the minimum ratio of
total capital to risk-adjusted assets (including certain off-balance sheet
items, such as standby letters of credit) is 8%. At least half of the total
capital is to be comprised of common equity, retained earnings, minority
interests in the equity accounts of consolidated subsidiaries and a limited
amount of noncumulative perpetual preferred stock, less deductible intangibles
("Tier 1 capital"). The remainder may consist of perpetual debt, mandatory
convertible debt securities, a limited amount of subordinated debt, other
preferred stock and a limited amount of loan loss reserves ("Tier 2 capital").
In addition, the Federal Reserve Board requires a leverage ratio (Tier 1 capital
to average quarterly assets, net of goodwill) of 3% for bank holding companies
that meet certain specified criteria, including that they have the highest
regulatory rating. The rule indicates that the minimum leverage ratio should be
1% to 2% higher for holding companies undertaking major expansion programs or
that do not have the highest regulatory rating. Fleet's national banking
subsidiaries are subject to similar capital requirements adopted by the
Comptroller of the Currency.
The federal banking agencies continue to consider capital requirements
applicable to banking organizations. Effective September 1, 1995, the federal
banking agencies adopted amendments to their risk-based capital regulations to
provide for the consideration of interest rate risk in the determination of a
bank's minimum capital requirements. The amendments require that banks
effectively measure and monitor their interest rate risk and that they maintain
capital adequate for that risk. Under the amendments, banks with excess interest
rate risk would be required to maintain additional capital beyond that generally
required. In addition, effective January 17, 1995, the federal banking agencies
adopted amendments to their risk-based capital standards to provide for the
concentration of credit risk and certain risks arising from nontraditional
activities, as well as a bank's ability to manage these risks, as important
factors in assessing a bank's overall capital adequacy.
As of September 30, 1995, Fleet's capital ratios on a historical basis
exceeded all minimum regulatory capital requirements.
Under federal banking laws, failure to meet the minimum regulatory capital
requirements could subject a banking institution to a variety of enforcement
remedies available to federal regulatory authorities, including the termination
of deposit insurance by the FDIC and seizure of the institution.
Interstate Banking and Branching Legislation
On September 29, 1994, President Clinton signed the Riegle-Neal Interstate
Banking and Branching Efficiency Act of 1994 (the "Interstate Act") into law.
The Interstate Act facilitates the interstate expansion and consolidation of
banking organizations by permitting (i) beginning one year after enactment of
the legislation, bank holding companies that are adequately capitalized and
managed to acquire banks located in states outside their home states regardless
of whether such acquisitions are authorized under the law of the host state,
(ii) the interstate merger of banks after June 1, 1997, subject to the right of
individual states to "opt in" or "opt out" of this authority prior to such date,
(iii) banks to establish new branches on an interstate basis provided that such
action is specifically authorized by the law of the host state, (iv) foreign
banks to establish, with approval of the appropriate regulators in the United
States, branches outside their home states to the same extent that national or
state banks located in such state would be authorized to do so and (v) beginning
September 29, 1995, banks to receive deposits, renew time deposits, close loans,
service loans and receive payments on loans and other obligations as agent for
any bank or thrift affiliate, whether the affiliate is located in the same or
different state. Connecticut and Rhode Island, which are two states in which
Fleet subsidiaries conduct banking operations, have adopted legislation opting
into the interstate provisions of the Interstate Act. Fleet is currently
considering the potential benefits in cost savings and convenience to its
customers that might be achieved through combinations of two or more of its
banking subsidiaries.
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DEPOSIT INSURANCE ASSESSMENTS [UPDATE?]
The deposits of each of Fleet's subsidiary banks are insured up to
regulatory limits by the FDIC and, accordingly, are subject to deposit insurance
assessments to maintain the Bank Insurance Fund ("BIF") administered by the
FDIC. The FDIC has adopted regulations establishing a permanent risk-related
deposit insurance assessment system. Under this system, the FDIC places each
insured bank in one of nine risk categories based on (a) the bank's
capitalization and (b) supervisory evaluations provided to the FDIC by the
institution's primary federal regulator. Each insured bank's insurance
assessment rate is then determined by the risk category in which it is
classified by the FDIC. There is currently a 27 basic point spread between the
highest and lowest assessment rates, so that banks classified in the highest
capital and supervisory evaluation categories by the FDIC are currently subject
to a rate of $0.04 per $100 of deposits and banks classified in the lowest
capital and supervisory evaluation categories by the FDIC are currently subject
to a rate of $0.31 per $100 of deposits.
On November 14, 1995, the FDIC voted to decrease premiums effective January
1, 1995. The decrease will lower the rate of deposit insurance premiums by $.04
per $100 of deposits for banks in each risk assessment category. As a result,
banks in the highest capital and supervisory evaluation categories will have an
assessment rate of $0.00, and will pay only the minimum assessment of $2,000 per
year for deposit insurance. Banks in the lowest capital and supervisory
evaluation categories will be subject to a rate of $0.27 per $100 of deposits.
These assessment rates also reflect the amount the FDIC has determined is
necessary to maintain the reserve ratio of BIF of 1.25% of total insured bank
deposits. The FDIC has announced that this reserve ratio was achieved during
1995. However, due primarily to the fact that the reserve ratio of the FDIC's
Savings Association Insurance Fund ("SAIF") is not projected to reach the
required level of 1.25% for several years, the FDIC has made a proposal to
Congress to (1) capitalize the SAIF through a special up-front cash assessment
on SAIF deposits; (2) spread the responsibility for payments to the Financing
Corporation created under Title III of the Competitive Equality Banking Act of
1987 proportionally over all FDIC-insured institutions; and (3) as soon as
practicable, merge the BIF and the SAIF.
Some Fleet subsidiary banks hold deposits that were acquired from savings
institutions and that, accordingly, are insured by SAIF. At September 30, 1995,
Fleet's banks held approximately $457 million of such deposits.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND DIVIDENDS
ON PREFERRED STOCK
Fleet's consolidated ratios of earnings to fixed charges and dividends on
preferred stock were as follows for the years and periods indicated:
<TABLE><CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, ------------------------------------
1995 1994 1993 1992 1991 1990
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges and Dividends
on Preferred Stock:
Excluding interest on deposits................ 2.67x 2.73x 2.67x 2.09x 1.31x *
Including interest on deposits................ 1.66 1.75 1.66 1.33 1.08 *
</TABLE>
- ------------
* The sum of fixed charges and dividends on preferred stock exceeded earnings by
$163 million (excluding interest on deposits) and by $163 million (including
interest on deposits) for the year ended December 31, 1990.
For purposes of computing the consolidated ratios, earnings consist of
income before income taxes plus fixed charges (excluding capitalized interest)
and, where indicated, the pretax equivalents of dividends on preferred stock.
Fixed charges consist of interest on short-term debt and long-term debt
(including interest related to capitalized leases and capitalized interest) and
one-third of rent expense, which approximates the interest component of such
expense. In addition, where indicated, fixed charges include interest on
deposits.
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USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, Fleet
intends to use the net proceeds from the sale of the Securities for general
corporate purposes, principally to extend credit to, or fund investments in, its
subsidiaries. The precise amounts and timing of extensions of credit to, and
investments in, such subsidiaries will depend upon the subsidiaries' funding
requirements and the availability of other funds. Pending such applications, the
net proceeds may be temporarily invested in marketable securities or applied to
the reduction of Fleet's short-term indebtedness. Based upon the historic and
anticipated future growth of Fleet and the financial needs of its subsidiaries,
Fleet may engage in additional financings of a character and amount to be
determined as the need arises.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating to such series of the Preferred Stock. If so
indicated in the applicable Prospectus Supplement, the terms of any such series
may differ from the terms set forth below. The description of the provisions of
the Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Certificate of Designation relating to the applicable series of
the Preferred Stock.
GENERAL
Under Fleet's Restated Articles of Incorporation (the "Articles"), the Board
of Directors of Fleet is authorized, without further shareholder action, to
provide for the issuance of up to 16,000,000 shares of preferred stock, $1 par
value ("Fleet $1 Par Preferred Stock"), in one or more series, with such voting
powers, dividends, designations, preferences, rights, qualifications,
limitations and restrictions as shall be set forth in the resolutions providing
for the issuance thereof adopted by the Board of Directors. As of September
30, 1995, Fleet had outstanding three series of Fleet $1 Par Preferred Stock as
follows: (i) 1,100,000 shares of Series III 10.12% Perpetual Preferred Stock
(the "Series III Preferred"), having a liquidation value of $100 per share, plus
accrued and unpaid dividends, were designated and 519,758 shares were issued and
outstanding, (ii) 1,000,000 shares of Series IV 9.375% Perpetual Preferred Stock
(the "Series IV Preferred"), having a liquidation value of $100 per share, plus
accrued and unpaid dividends, were designated and 478,838 shares were issued and
outstanding and (iii) 1,415,000 shares of Dual Convertible Preferred Stock (the
"Dual Convertible Preferred Stock"), having a liquidation value of $200 per
share, plus accrued and unpaid dividends, were designated and 1,415,000 shares
were issued and outstanding. In addition, as of September 30, 1995, the Board of
Directors of Fleet had established a series of 1,500,000 shares of Cumulative
Participating Junior Preferred Stock, par value $1 per share (the "Junior
Preferred Stock") issuable upon exercise of the preferred share purchase rights
described below, of which no shares were issued and outstanding as of such date.
Each such outstanding series and class is described below under "Description of
Existing Preferred Stock".
Under regulations adopted by the Federal Reserve Board, if the holders of
any series of the Preferred Stock are or become entitled to vote for the
election of directors because dividends on such series are in arrears, such
series may then be deemed a "class of voting securities" and a holder of 25% or
more of such series (or a holder of 5% or more if it otherwise exercises a
"controlling influence" over Fleet) may then be subject to regulation as a bank
holding company in accordance with the Bank Holding Company Act of 1956, as
amended. In addition, at such time as such series is deemed a class of voting
securities, (i) any other bank holding company may be required to obtain the
approval of the Federal Reserve Board to acquire or retain 5% or more of such
series and (ii) any person other than a bank holding company may be required to
obtain the approval of the Federal Reserve Board to acquire or retain 10% or
more of such series.
The Preferred Stock shall have the dividend, liquidation, redemption, voting
and conversion rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of
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the Preferred Stock. Reference is made to the Prospectus Supplement relating to
the particular series of the Preferred Stock offered thereby for specific terms,
including: (i) the title, stated value and liquidation preference of such
Preferred Stock and the number of shares offered; (ii) the initial public
offering price at which such Preferred Stock will be issued; (iii) the dividend
rate or rates (or method of calculation), the dividend periods, the dates on
which dividends shall be payable and whether such dividends shall be cumulative
or noncumulative and, if cumulative, the dates from which dividends shall
commence to accumulate; (iv) any redemption or sinking fund provisions; (v) any
conversion provisions; (vi) whether Fleet has elected to offer Depositary Shares
as described under "Description of Depositary Shares"; and (vii) any other
rights, preferences, privileges, limitations and restrictions on such Preferred
Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Stock, each series of the Preferred Stock will rank on a
parity in all respects with the outstanding preferred stock of Fleet and each
other series of the Preferred Stock (except for the Junior Preferred Stock) and
will rank senior in all respects to any outstanding shares of Junior Preferred
Stock and the Common Stock. See "Description of Existing Preferred Stock". The
Preferred Stock will have no preemptive rights to subscribe for any additional
securities which may be issued by Fleet.
Unless otherwise specified in the applicable Prospectus Supplement, the
depositary, transfer agent, registrar, dividend disbursing agent and redemption
agent for shares of the Preferred Stock will be Fleet-RI.
As described under "Description of Depositary Shares", Fleet may, at its
option, with respect to any series of the Preferred Stock, elect to offer
fractional interests in shares of Preferred Stock, and provide for the issuance
by a Depositary (as defined below) of depositary receipts ("Depositary
Receipts") representing depositary shares ("Depositary Shares"), each of which
will represent a fractional interest (to be specified in the applicable
Prospectus Supplement relating to a particular series of the Preferred Stock) in
a share of such series of the Preferred Stock.
DIVIDENDS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of Fleet, out of any funds
legally available therefor, cash dividends at such rates and on such dates as
are set forth in the Prospectus Supplement relating to such series of the
Preferred Stock. Such rates may be fixed or adjustable or both. If adjustable,
the formula or other method used for determining the applicable dividend rate
for each dividend period will be set forth in the applicable Prospectus
Supplement. Dividends will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the Board
of Directors of Fleet fails to declare a dividend payable on a dividend payment
date on any series of the Preferred Stock for which dividends are noncumulative
("Noncumulative Preferred Stock"), then the holders of such series of the
Preferred Stock will have no right to receive a dividend in respect of the
dividend period ending on such dividend payment date, and Fleet will have no
obligation to pay the dividend accrued for such period, whether or not dividends
on such series are declared payable on any future dividend payment dates.
When dividends are not paid in full upon any series of the Preferred Stock
and any other series of Fleet's preferred stock ranking on a parity as to
dividends with such series of Preferred Stock, all dividends declared upon
shares of such series of Preferred Stock and any other series of Fleet's
preferred stock ranking on a parity as to dividends shall be declared pro rata
so that the amount of dividends declared per share on such series of Preferred
Stock and such other preferred stock shall in all cases bear to each other the
same ratio that accrued dividends per share on the shares of such series of
Preferred Stock (which shall not, if such Preferred Stock is Noncumulative
Preferred Stock, include any accumulation in respect of unpaid dividends for
prior dividend periods) and such other preferred stock bear to each other.
Except as provided in the preceding sentence, unless (i) with respect to any
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series of Preferred Stock for which dividends are cumulative ("Cumulative
Preferred Stock"), full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for such payment on such Preferred Stock for all dividend periods
terminating on or prior to the date of payment of any such dividends on such
other series of preferred shares of Fleet or (ii) with respect to any series of
Noncumulative Preferred Stock, full dividends for the then-current dividend
period on such Preferred Stock have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for such
payment, no dividends (other than in Common Stock or another stock ranking
junior to such series of Preferred Stock as to dividends and upon liquidation)
shall be declared or paid or set aside for payment, nor shall any other
distribution be made on the Common Stock or on any other stock of Fleet ranking
junior to or on a parity with such series of Preferred Stock as to dividends or
upon liquidation. Unless full dividends on the Cumulative Preferred Stock of any
series have been paid for the then-current and all past dividend periods and
full dividends for the then-current dividend period on the Noncumulative
Preferred Stock of any series have been declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment, no Common Stock
or any other stock of Fleet ranking junior to or on a parity with such series of
Preferred Stock as to dividends or upon liquidation may be redeemed, purchased
or otherwise acquired for any consideration (or any moneys paid to or made
available for a sinking fund for the redemption of any shares of any such stock)
by Fleet (except by conversion into or exchange for stock of Fleet ranking
junior to such series of Preferred Stock as to dividends and upon liquidation).
See "Fleet Financial Group, Inc." with respect to certain limitations on the
ability of Fleet and its banking subsidiaries to pay dividends.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary dissolution, liquidation or
winding up of Fleet, the holders of each series of the Preferred Stock will be
entitled to receive and to be paid out of assets of Fleet available for
distribution to its stockholders, before any payment or distribution is made to
holders of Common Stock or any other class of stock ranking junior to such
series of the Preferred Stock upon liquidation, liquidating distributions in an
amount per share as set forth in the Prospectus Supplement relating to such
series of the Preferred Stock, plus accrued and unpaid dividends (whether or not
earned or declared) for the then-current dividend period and, if such series of
the Preferred Stock is Cumulative Preferred Stock, for all dividend periods
prior thereto. If, upon any voluntary or involuntary dissolution, liquidation or
winding up of Fleet, the amounts payable with respect to the Preferred Stock of
any series and any other shares of stock of Fleet ranking as to any such
distribution on a parity with the Preferred Stock of such series are not paid in
full, the holders of the Preferred Stock of such series and of such other shares
will share ratably in any such distribution of assets of Fleet in proportion to
the full respective distributable amounts to which they are entitled. After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of shares of such series of the Preferred Stock will not
be entitled to any further participation in any distribution of assets by Fleet.
Neither the sale of all or substantially all the property or business of Fleet,
nor the merger or consolidation of Fleet into or with any other corporation
shall be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, of Fleet.
REDEMPTION
Any series of the Preferred Stock may be redeemable, in whole or in part, at
the option of Fleet, and may be subject to mandatory redemption pursuant to a
sinking fund or otherwise, in each case upon the terms, at the times and at the
redemption prices set forth in the Prospectus Supplement relating to such series
and subject to the rights of holders of other securities of Fleet. Preferred
Stock redeemed by Fleet will be restored to the status of authorized but
unissued preferred shares.
The Prospectus Supplement relating to a series of the Preferred Stock which
is subject to mandatory redemption will specify the number of shares of such
series of the Preferred Stock which shall be redeemed by Fleet in each year
commencing after a date to be specified, at a redemption price
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<PAGE>
per share and on one or more dates to be specified, together with an amount
equal to all accrued and unpaid dividends thereon (which shall not, if such
Preferred Stock is Noncumulative Preferred Stock, include any accumulation in
respect of unpaid dividends for prior dividend periods) to the date of
redemption. The redemption price may be payable in cash or other property, as
specified in the Prospectus Supplement relating to such series of Preferred
Stock.
If fewer than all of the outstanding shares of any series of the Preferred
Stock are to be redeemed, the number of shares to be redeemed will be determined
by the Board of Directors of Fleet and such shares shall be redeemed pro rata
from the holders of record of such shares in proportion to the number of such
shares held by such holders (with adjustments to avoid redemption of fractional
shares) or by lot in a manner determined by the Board of Directors of Fleet.
Notwithstanding the foregoing, if any dividends, including any accumulation
on shares of Cumulative Preferred Stock, of any series are in arrears, no shares
of Preferred Stock of such series shall be redeemed unless all outstanding
shares of Preferred Stock of such series are simultaneously redeemed, and Fleet
shall not purchase or otherwise acquire any shares of Preferred Stock of such
series; provided, however, that the foregoing shall not prevent the purchase or
acquisition of shares of Preferred Stock of such series pursuant to a purchase
or exchange offer made on the same terms to all holders of such series of the
Preferred Stock.
Notice of redemption shall be given by mailing the same to each record
holder of the shares to be redeemed, not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof, to the respective addresses of
such holders as the same shall appear on the stock books of Fleet. Each such
notice shall state: (i) the redemption date; (ii) the number of shares and
series of the Preferred Stock to be redeemed; (iii) the redemption price; (iv)
the place or places where certificates for such shares of Preferred Stock are to
be surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue or accumulate on such redemption
date; and (vi) the date upon which the holders' conversion rights, if any, as to
such shares, shall terminate. If fewer than all shares of any series of the
Preferred Stock held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares to be redeemed from such holder.
If notice of redemption has been given, dividends on the shares of Preferred
Stock so called for redemption shall cease to accrue or accumulate from and
after the redemption date for the shares of the series of the Preferred Stock
called for redemption (unless default shall be made by Fleet in providing money
for the payment of the redemption price of the shares so called for redemption),
and such shares shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of Fleet (except the right to receive the
redemption price) shall cease. Upon surrender in accordance with such notice of
the certificates representing any shares of the Preferred Stock so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of Fleet
shall so require and the notice shall so state), the redemption price set forth
above shall be paid out of funds provided by Fleet. If fewer than all of the
shares of the Preferred Stock represented by any such certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as expressly required by
applicable law, the holders of the Preferred Stock will not be entitled to vote.
In the event Fleet issues shares of a series of the Preferred Stock, each share
will be entitled to one vote on matters on which holders of such series of the
Preferred Stock are entitled to vote. However, as more fully described below
under "Description of Depositary Shares", if Fleet elects to provide for the
issuance of Depositary Shares representing interests in a fraction of a share of
a series of the Preferred Stock, the holders of each such Depositary Share will,
in effect, be entitled through the Depositary to such fraction of a vote, rather
than a full vote. Since each full share of any series of the Preferred Stock
shall be entitled to one vote, the voting power of such series, on matters on
which holders of such series and holders of any other series of the Preferred
Stock or another series of preferred stock of Fleet are entitled to vote as a
single class, will depend on the number of shares in such
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series, not the aggregate stated value, liquidation preference or initial
offering price of the shares of such series of the Preferred Stock.
If the equivalent of six quarterly dividends payable on any series of the
Preferred Stock or any other class or series of preferred stock are in default,
the number of directors of Fleet will be increased by two (without duplication
of any increase made pursuant to the terms of any other series of preferred
stock of Fleet), and the holders of all outstanding series of preferred stock,
including holders of any series of the Preferred Stock, voting as a single class
without regard to series, will be entitled at Fleet's next annual meeting of
stockholders (and at each subsequent annual meeting of stockholders) to elect
such additional two directors until full cumulative dividends for all
then-current and past dividend periods on all preferred shares of Fleet so
entitled to vote, including any shares of the Preferred Stock, have been paid or
declared and set apart for payment. Any such elected directors shall serve until
Fleet's next annual meeting of stockholders or until their respective successors
shall be elected and qualified. If a vacancy in the office of such director
shall occur during the continuance of a default in dividends on preferred shares
of Fleet so entitled to vote prior to the end of the term of such director, such
vacancy shall be filled for the unexpired term of such director by the remaining
director elected by the preferred shares so entitled to vote.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Preferred Stock of any series at the time outstanding,
voting as a class, will be required for any amendment of the Articles (or any
certificate supplemental thereto) which will adversely affect the powers,
preferences, privileges or rights of such series of Preferred Stock. The
affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of any series of Preferred Stock and any other series of
preferred stock of Fleet ranking on a parity with any series of Preferred Stock
as to dividends or upon liquidation, voting as a single class without regard to
series, will be required to issue, authorize or increase the authorized amount
of, or issue or authorize any obligation or security convertible into or
evidencing a right to purchase, any additional class or series of stock ranking
prior to any series of Preferred Stock as to dividends or upon liquidation, but
such vote will not be required to take any such actions with respect to any
stock ranking on a parity with or junior to the Preferred Stock of such series.
Subject to such affirmative vote or consent of the holders of the
outstanding shares of the Preferred Stock of any series, Fleet may, by
resolution of its Board of Directors or as otherwise permitted by law, from time
to time alter or change the preferences, rights or powers of the Preferred Stock
of such series. The holders of the Preferred Stock of such series shall not be
entitled to participate in any such vote if, at or prior to the time when any
such alteration or change is to take effect, provision is made for the
redemption of all the Preferred Stock of such series at the time outstanding.
Nothing in this section shall be taken to require a class vote or consent in
connection with the authorization, designation, increase or issuance of any
shares of any class or series (including additional Preferred Stock of any
series) ranking junior to or on a parity with the Preferred Stock of such series
as to dividends and liquidation rights or in connection with the authorization,
designation, increase or issuance of any bonds, mortgages, debentures or other
obligations of Fleet.
CONVERSION RIGHTS
The Prospectus Supplement relating to any series of the Preferred Stock that
is convertible will state the terms on which shares of such series are
convertible into Common Stock of Fleet or another series of Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject to
and qualified in its entirety by reference to the Deposit Agreement and
Depositary Receipts relating to the applicable series of the Preferred Stock,
forms of which will be filed as an exhibit to the Registration Statement of
which this Prospectus forms a part.
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GENERAL
Fleet may, at its option, elect to offer fractional interests in shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event such
option is exercised, Fleet will provide for the issuance by a Depositary of
Depositary Receipts evidencing Depositary Shares, each of which will represent a
fractional interest (to be set forth in the Prospectus Supplement relating to a
particular series of the Preferred Stock) in a share of a particular series of
the Preferred Stock as described below.
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between Fleet and a bank or trust company selected by Fleet (which
may be affiliated with Fleet) having its principal office in the United States
and having a combined capital and surplus of at least $50,000,000 (the
"Depositary"). The Prospectus Supplement relating to a series of Depositary
Shares will set forth the name and address of the Depositary. Unless otherwise
specified in the applicable Prospectus Supplement, the Depositary for shares of
the Preferred Stock will be Fleet-RI. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a share of Preferred Stock underlying such
Depositary Share, to all the rights and preferences of the Preferred Stock
underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement. Pending the preparation of definitive
engraved Depositary Receipts, the Depositary may, upon the written order of
Fleet, issue temporary Depositary Receipts substantially identical to, and
entitling the holders thereof to all the rights pertaining to, the definitive
Depositary Receipts but not in definitive form. Definitive Depositary Receipts
will be prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at Fleet's
expense.
Upon surrender of Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called for
redemption) and upon payment of the charges provided in the Deposit Agreement
and subject to the terms thereof, a holder of Depositary Shares is entitled to
have the Depositary deliver to, or upon the order of, such holder the whole
shares of Preferred Stock underlying, and any money or other property
represented by, the Depositary Shares evidenced by the surrendered Depositary
Receipts.
Partial shares of Preferred Stock will not be issued. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Preferred Stock to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares. Holders of shares of Preferred Stock thus withdrawn will
not thereafter be entitled to deposit such shares under the Deposit Agreement or
to receive Depositary Shares therefor. Fleet does not expect that there will be
any public trading market for the Preferred Stock except as represented by the
Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash (including, without
limitation, distributions resulting from stock dividends, splits or plans of
reorganization), the Depositary will distribute property received by it to the
record holders of Depositary Shares entitled thereto, unless the Depositary
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determines that it is not feasible to make such distribution, in which case the
Depositary may, with the approval of Fleet, sell such property and distribute
the net proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by Fleet to holders of the
Preferred Stock shall be made available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If any Preferred Stock deposited under a Deposit Agreement is subject to
redemption, the related Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever Fleet redeems shares of Preferred Stock held by
the Depositary, the Depositary will redeem as of the same redemption date the
number of Depositary Shares relating to shares of Preferred Stock so redeemed.
If less than all the Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed will be selected pro rata or by lot as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock
underlying such Depositary Shares in accordance with such instructions, and
Fleet will agree to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of Preferred Stock to the extent it does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Stock.
TAXATION
Owners of Depositary Shares will be treated for Federal income tax purposes
as if they were owners of the Preferred Stock represented by such Depositary
Shares and, accordingly, will be entitled to take into account for Federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Stock. In addition, (i) no gain or loss will
be recognized for Federal income tax purposes upon the withdrawal of Preferred
Stock in exchange for Depositary Shares as provided in the Deposit Agreement,
(ii) the tax basis of each share of Preferred Stock to an exchanging owner of
Depositary Shares will, upon such exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged therefor and (iii) the holding period
for shares of the Preferred Stock in the hands of an exchanging owner of
Depositary Shares who held such Depositary Shares as a capital asset at the time
of the exchange thereof for Preferred Stock will include the period during which
such person owned such Depositary Shares.
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AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between Fleet and the Depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of Depositary Shares will
not be effective unless such amendment has been approved by the record holders
of at least a majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by Fleet or the Depositary only if (i) all
outstanding Depositary Shares relating thereto have been redeemed or (ii) there
has been a final distribution in respect of the Preferred Stock of the relevant
series in connection with any liquidation, dissolution or winding up of Fleet
and such distribution has been distributed to the holders of the related
Depositary Shares.
CHARGES OF DEPOSITARY
Fleet will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. Fleet will pay charges
of the Depositary in connection with the initial deposit of the Preferred Stock
and any redemption of the Preferred Stock. Holders of Depositary Shares will pay
other transfer and other taxes and governmental charges and such other charges
as are expressly provided in the Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all notices,
reports and other communications (including proxy solicitation materials) from
Fleet which are delivered to the Depositary and which Fleet is required to
furnish to the holders of the Preferred Stock.
Neither the Depositary nor Fleet will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of Fleet and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, on information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other persons
believed to be competent and on documents believed to be genuine.
Any record holder of Depositary Shares who has been a holder for at least
six months or who holds at least five percent of the outstanding shares of
capital stock of Fleet will be entitled to inspect the transfer books relating
to the Depositary Shares and the list of record holders of Depositary Shares
upon certification to the Depositary that such holder is acting in good faith
and that such inspection is for a proper purpose.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to Fleet notice of the
Depositary's election to do so, and Fleet may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
DESCRIPTION OF EXISTING PREFERRED STOCK
GENERAL
The following summary does not purport to be complete and is subject in all
respects to the applicable provisions of the Rhode Island Business Corporation
Act (the "RIBCA") and the Articles and By-laws of Fleet.
FLEET $1 PAR PREFERRED STOCK
Fleet $1 Par Preferred Stock (which includes the Preferred Stock), is
issuable in series, with such relative rights, preferences and limitations of
each series (including dividend rights, dividend rate,
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liquidation preference, voting rights, conversion rights and terms of redemption
(including sinking fund provisions), redemption price or prices and the number
of shares constituting any series) as may be fixed by the Board of Directors.
Series III Preferred. In the event of the dissolution, liquidation or
winding up of Fleet, holders of shares of the outstanding Series III Preferred
are entitled to receive a distribution of $100 per share, plus accrued and
unpaid dividends, if any.
The holders of Series III Preferred are entitled to receive dividends at the
rate of 10.12% per annum computed on the basis of the issue price thereof of
$100 per share, payable quarterly, before any dividend shall be declared or paid
upon the Common Stock or the Junior Preferred Stock. The dividends on Series III
Preferred are cumulative. The Series III Preferred is redeemable, in whole or in
part, at Fleet's option, on and after June 1, 1996, commencing at $105.06 per
share and declining ratably on June 1 of each year to $100 per share on or after
June 1, 2001, plus, in each case, accrued and unpaid dividends, if any.
Except as indicated below or except as expressly required by applicable law,
the holders of the Series III Preferred are not entitled to vote. If the
equivalent of six quarterly dividends payable on the Series III Preferred or any
other class or series of preferred stock (other than any other class of
preferred stock expressly entitled to elect additional directors by a separate
and distinct vote) are in default, the number of directors of Fleet will be
increased by two (without duplication of any increase made pursuant to the terms
of any other series of preferred stock of Fleet), and the holders of the Series
III Preferred, voting as a single class with the holders of shares of any one or
more other series of Fleet $1 Par Preferred Stock (other than any other class of
preferred stock expressly entitled to elect additional directors by a separate
and distinct vote) and any other class of Fleet preferred stock ranking on a
parity with the Series III Preferred either as to dividends or distribution of
assets and upon which like voting rights have been conferred and are
exercisable, will be entitled to elect two directors to fill each of the two
newly-created directorships. Such right shall continue until full cumulative
dividends for all past dividend periods on all preferred shares of Fleet (other
than any other class of preferred stock expressly entitled to elect additional
directors by a separate and distinct vote), including any shares of the Series
III Preferred, have been paid or declared and set apart for payment. Any such
elected directors shall serve until Fleet's next annual meeting of stockholders
(notwithstanding that prior to the end of such term the dividend default shall
cease to exist) or until their respective successors shall be elected and
qualify.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series III Preferred is required for any amendment of
the Articles (or any certificate supplemental thereto) which will adversely
affect the powers, preferences, privileges or rights of the Series III
Preferred. The affirmative vote or consent of the holders of at least 66 2/3% of
the outstanding shares of the Series III Preferred and any other series of Fleet
$1 Par Preferred Stock ranking on a parity with the Series III Preferred either
as to dividends or upon liquidation, voting as a single class without regard to
series, is required to issue, authorize or increase the authorized amount of, or
issue or authorize any obligation or security convertible into or evidencing a
right to purchase, any additional class or series of stock ranking prior to the
Series III Preferred as to dividends or upon liquidation, or to reclassify any
authorized stock of Fleet into such prior shares.
Series IV Preferred. In the event of the dissolution, liquidation or winding
up of Fleet, holders of shares of the outstanding Series IV Preferred are
entitled to receive a distribution of $100 per share, plus accrued and unpaid
dividends, if any.
The holders of Series IV Preferred are entitled to receive dividends at the
rate of 9.375% per annum computed on the basis of the issue price thereof of
$100 per share, payable quarterly, before any dividend shall be declared or paid
upon the Common Stock or the Junior Preferred Stock. The dividends on Series IV
Preferred are cumulative. The Series IV Preferred is redeemable, in whole or in
part, at Fleet's option, on and after December 1, 1996, at $100 per share, plus
accrued and unpaid dividends, if any.
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Except as indicated below or except as expressly required by applicable law,
the holders of the Series IV Preferred are not entitled to vote. If the
equivalent of six quarterly dividends payable on the Series IV Preferred or any
other class or series of preferred stock are in default (other than any other
class of preferred stock expressly entitled to elect additional directors by a
separate and distinct vote), the number of directors of Fleet will be increased
by two (without duplication of any increase made pursuant to the terms of any
other series of preferred stock of Fleet), and the holders of the Series IV
Preferred, voting as a single class with the holders of shares of any one or
more other series of Fleet $1 Par Preferred Stock (other than any other class of
preferred stock expressly entitled to elect additional directors by a separate
and distinct vote) and any other class of Fleet preferred stock ranking on a
parity with the Series IV Preferred either as to dividends or distribution of
assets and upon which like voting rights have been conferred and are
exercisable, will be entitled to elect such directors to fill each of the two
newly-created directorships. Such right shall continue until full cumulative
dividends for all past dividend periods on all preferred shares of Fleet (other
than any other class of preferred stock expressly entitled to elect additional
directors by a separate and distinct vote), including any shares of the Series
IV Preferred, have been paid or declared and set apart for payment. Any such
elected directors shall serve until Fleet's next annual meeting of stockholders
(notwithstanding that prior to the end of such term the dividend default shall
cease to exist) or until their respective successors shall be elected and
qualify.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series IV Preferred is required for any amendment of
the Articles (or any certificate supplemental thereto) which will adversely
affect the powers, preferences, privileges or rights of the Series IV Preferred.
The affirmative vote or consent of the holders of at least 66 2/3% of the
outstanding shares of the Series IV Preferred and any other series of Fleet $1
Par Preferred Stock ranking on a parity with the Series IV Preferred either as
to dividends or upon liquidation, voting as a single class without regard to
series, is required to issue, authorize or increase the authorized amount of, or
issue or authorize any obligation or security convertible into or evidencing a
right to purchase, any additional class or series of stock ranking prior to the
Series IV Preferred as to dividends or upon liquidation, or to reclassify any
authorized stock of Fleet into such prior shares.
Dual Convertible Preferred Stock. The Dual Convertible Preferred Stock has
no voting rights except as provided by Rhode Island law or as indicated below.
The Dual Convertible Preferred Stock is not entitled to vote for the election of
directors in any circumstances, including dividend arrearages, and the holders
thereof have agreed to vote the Dual Convertible Preferred Stock as directed by
Fleet's board of directors on any matters upon which the shares are entitled to
vote under Rhode Island law, except on those matters adversely affecting the
rights of holders of Dual Convertible Preferred Stock. The affirmative vote or
consent of the holders of at least 66 2/3% of the outstanding shares of Dual
Convertible Preferred Stock, voting as a class, given in person or by proxy,
either in writing or by resolution adopted at a special meeting called for the
purpose, is required to authorize any new class of equity securities of Fleet to
which the Dual Convertible Preferred Stock ranks junior, whether with respect to
dividends or upon liquidation, dissolution, winding up or otherwise. In
addition, the affirmative vote or consent of the holders of at least 66 2/3% of
the outstanding shares of Dual Convertible Preferred Stock, voting as a class,
given in person or by proxy, either in writing or by resolution adopted at a
special meeting called for the purpose, shall be required for any amendment of
Fleet's Articles (or the certificate of designation of the Dual Convertible
Preferred Stock), which would affect materially and adversely the specified
rights, preferences, privileges or voting rights of shares of Dual Convertible
Preferred Stock.
The holders of Dual Convertible Preferred Stock are entitled to dividends
equal to one-half of the total dividends declared (after the first $15 million
in dividends), if any, by Fleet Banking Group on its common stock. Such
dividends, if accrued and unpaid, will be cumulative. In the event of the
liquidation, dissolution or winding up of Fleet, the holders of the outstanding
Dual Convertible Preferred Stock are entitled to receive a distribution of $200
per share, plus accrued and unpaid dividends, if any.
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On July 31, 1991, the date of issuance of the Dual Convertible Preferred
Stock, Fleet granted to the partnerships which purchased the Dual Convertible
Preferred Stock (the "Partnerships") rights (the "DCP Rights") to purchase
6,500,000 shares of Common Stock at $17.65 per share.
The Dual Convertible Preferred Stock is convertible into Common Stock at a
conversion price of $17.65 per share at any time. The total number of shares
issuable upon such conversion is 16,033,994 shares, subject to customary
anti-dilution adjustments. If any of such stock is converted prior to July 12,
2001, all of such stock must be converted. After July 12, 2001, any holder of
Dual Convertible Preferred Stock may convert its stock into Common Stock
independently of any other holder.
The Dual Convertible Preferred Stock is also convertible into 50% of the
common stock of Fleet Banking Group at any time after the later of (i) July 12,
1995 and (ii) the date on which the Partnerships distribute all the shares of
Dual Convertible Preferred Stock then held by them to the partners therein
(which distribution date will be July 12, 1997 unless the Federal Reserve Board
consents to an alternative distribution date, but in no event earlier than July
12, 1995). The Dual Convertible Preferred Stock is also convertible into Fleet
Banking Group common stock on an earlier date in the event that the quotient of
(i) Fleet's Tier 1 capital as of the date of determination (adjusted to include
goodwill of Fleet as of July 12, 1991) divided by (ii) total assets, falls below
3%. The Dual Convertible Preferred Stock is not convertible into Fleet Banking
Group common stock after July 12, 2001 or at any time while it is held by the
Partnerships. After the Dual Convertible Preferred Stock becomes convertible
into Fleet Banking Group common stock, the holders of the Dual Convertible
Preferred Stock will have the right to obtain an appraisal of the fair value of
the common stock of Fleet Banking Group (the "Appraisal") as if all such shares
were to be sold to a third party in a transaction reflecting a control premium.
If such Appraisal is acceptable to the holders of the Dual Convertible Preferred
Stock, the Dual Convertible Preferred Stock may be converted into 50% of the
common stock of Fleet Banking Group on or after the date that is six months
after such acceptance or, in the case of the earlier date due to the capital
deficiency described above, on or after the date that is 60 days after the
notice of such deficiency. During the period after acceptance but prior to the
date on which such shares become convertible, Fleet will have the option to
redeem the Dual Convertible Preferred Stock at a redemption price equal to 50%
of the Appraisal price less the sum of (i) the market value of the shares of
Common Stock into which the Dual Convertible Preferred Stock is then convertible
(and such shares of Common Stock shall be distributed to the holders of Dual
Convertible Preferred Stock) and (ii) the value of the DCP Rights. Fleet has the
option to pay such redemption price in cash or in any combination of Fleet
securities having a realizable market value equal to such redemption price. If
Fleet does not exercise this option, the holders of the Dual Convertible
Preferred Stock may convert their shares into 50% of the common stock of Fleet
Banking Group. Any such conversion must be for all of the Dual Convertible
Preferred Stock.
Junior Preferred Stock. The Junior Preferred Stock will be issued upon the
exercise of a Right (as hereinafter defined) issued to holders of the Common
Stock. As of the date of this Prospectus, there were 1,500,000 shares of Fleet
$1 Par Preferred Stock reserved for issuance upon the exercise of the Rights.
See "--Description of Common Stock--Preferred Share Purchase Rights". Shares of
Junior Preferred Stock purchasable upon exercise of the Rights will rank junior
to the Fleet $1 Par Preferred Stock and the Fleet $20 Par Adjustable Rate
Preferred Stock and will not be redeemable. Each share of Junior Preferred Stock
will, subject to the rights of such senior securities of Fleet, be entitled to a
preferential cumulative quarterly dividend payment equal to the greater of $1.00
per share or, subject to certain adjustments, 100 times the dividend declared
per share of Common Stock. Upon the liquidation, dissolution or winding up of
Fleet, the holders of the Junior Preferred Stock will, subject to the rights of
such senior securities, be entitled to a preferential liquidation payment equal
to the greater of $1.00 per share plus all accrued and unpaid dividends or 100
times the payment made per share of Common Stock. Finally, in the event of any
merger, consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Junior Preferred Stock will, subject to the rights of
such senior securities, be entitled to receive 100 times the amount received per
share of Common Stock. Each share of Junior Preferred Stock will have 100 votes,
voting together with the Common Stock. The rights of the Junior Preferred Stock
are protected by customary antidilution provisions.
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DESCRIPTION OF COMMON STOCK
GENERAL
Holders of the Common Stock are entitled to receive dividends when, as and
if declared by the Board of Directors out of any funds legally available
therefor, and are entitled upon liquidation, after claims of creditors and
preferences of the Preferred Stock, and any other class or series of preferred
stock at the time outstanding, to receive pro rata the net assets of Fleet.
Dividends are paid on the Common Stock only if all dividends on the outstanding
series of Preferred Stock, and any other class or series of preferred stock at
the time outstanding, for the then-current period and, in the case of Cumulative
Preferred Stock, all prior periods have been paid or provided for.
Fleet $1 Par Preferred Stock and any other class of preferred stock have, or
upon issuance will have, preference over the Common Stock with respect to the
payment of dividends and the distribution of assets in the event of liquidation
or dissolution of Fleet and such other preferences as may be fixed by the Board
of Directors.
The holders of the Common Stock are entitled to one vote for each share held
and are vested with all of the voting power except as the Board of Directors has
provided with respect to outstanding preferred stock or may provide, in the
future, with respect to Preferred Stock or any other class or series of
preferred stock which it may hereafter authorize. See "Description of Existing
Preferred Stock". Shares of Common Stock are not redeemable and have no
subscription, conversion or preemptive rights.
The affirmative vote of not less than 80% of Fleet's outstanding voting
stock, voting separately as a class, is required for certain Business
Combinations between Fleet and/or its subsidiaries and persons owning 10% or
more of its voting stock. See "Selected Provisions in the Articles of Fleet;
Business Combinations with Related Persons".
The Common Stock is listed on the New York Stock Exchange. The outstanding
shares of Common Stock are, and the shares to be issued in connection with any
offering hereunder will be, validly issued, fully paid and non-assessable and
the holders thereof are not, and will not be, subject to any liability as
stockholders.
TRANSFER AGENT AND REGISTRAR.
The Transfer Agent and Registrar for the Fleet Common Stock is Fleet-RI.
RESTRICTIONS ON OWNERSHIP.
The Bank Holding Company Act (the "BHCA") requires any "bank holding
company", as such term is defined therein, to obtain the approval of the Federal
Reserve Board prior to the acquisition of 5% or more of the Common Stock. Any
person other than a bank holding company is required to obtain prior approval of
the Federal Reserve Board to acquire 10% or more of the Common Stock under the
Change in Bank Control Act (the "CBCA"). The Partnerships which purchased the
Dual Convertible Preferred Stock made a filing under the CBCA because of their
acquisition of such stock. Any holder of 25% or more of the Common Stock (or a
holder of 5% or more if such holder otherwise exercises a "controlling
influence" over Fleet) is subject to regulation as a bank holding company under
the BHCA.
PREFERRED SHARE PURCHASE RIGHTS
On November 21, 1990, the Board of Directors of Fleet declared a dividend of
one Preferred Share Purchase Right (a "Right") for each outstanding share of
Common Stock of Fleet. The dividend was paid on December 4, 1990 to the
shareholders of record on that date. Each Right, when exercisable, will entitle
the registered holder to purchase from Fleet one one-hundredth of a share of
Junior Preferred Stock at an exercise price of $50 per one one-hundredth of a
share of Junior Preferred Stock (the "Purchase Price"), subject to certain
adjustments. Until the Distribution Date (as hereinafter defined), Fleet will
issue one Right with each share of Common Stock. The following summary does not
purport
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<PAGE>
to be complete and is subject to, and is qualified in its entirety by reference
to, all of the provisions of the Rights Agreement dated as of November 21, 1990
between Fleet and Fleet-RI, as Rights Agent, a copy of which was filed as an
exhibit to the Registration Statement on Form 8-A filed with the Commission on
December 4, 1990, as amended by a First Amendment to Rights Agreement dated
March 28, 1991 and a Second Amendment to Rights Agreement dated July 12, 1991,
copies of which were filed as exhibits to Fleet's Amendment to Application or
Report on Form 8 dated September 6, 1991 and a Third Amendment to Rights
Agreement dated February 20, 1995, a copy of which was filed as an exhibit to
Fleet's Form 8-A/A dated March 17, 1995 (as amended, the "Rights Agreement").
The Rights are not represented by separate certificates and are not
exercisable or transferable apart from the Common Stock until the earlier to
occur of (i) the tenth day after a public announcement by Fleet (x) that a
person or group of affiliated or associated persons has acquired, or obtained
the right to acquire, beneficial ownership (as defined in the Rights Agreement)
of 10% or more (or, in the case of an institutional investor, acting in the
ordinary course of business and not with the purpose of changing or influencing
control of Fleet (a "Qualifying Investor"), 15% or more) of the outstanding
shares of Common Stock, (y) that any person or group of affiliated or associated
persons, which beneficially owned 10% or more (or, in the case of a Qualifying
Investor, 15% or more) of the outstanding shares on the Declaration Date, or
which acquired beneficial ownership of 10% or more (or, in the case of a
Qualifying Investor, 15% or more) of the outstanding shares as a result of any
repurchase of shares by Fleet, thereafter acquired beneficial ownership of
additional shares constituting 1% or more of the outstanding shares, or (z) that
any person who was a Qualifying Investor owning 10% or more of the outstanding
shares of Common Stock ceased to qualify as a Qualifying Investor and thereafter
acquired beneficial ownership of additional shares constituting 1% or more of
the outstanding shares (any person described in clause (x), (y) or (z) being an
"Acquiring Person"); and (ii) the tenth day (or such later day as may be
determined by action of the Board of Directors of Fleet prior to such time as
any person becomes an Acquiring Person) after the date of the commencement of a
tender or exchange offer by any person (other than Fleet) to acquire (when added
to any shares as to which such person is the beneficial owner immediately prior
to such commencement) beneficial ownership of 10% or more of the issued and
outstanding shares of Common Stock (the earlier of such dates being called the
"Distribution Date"). On March 28, 1991 and July 12, 1991, the Rights Agreement
was amended to change the definition of an "Acquiring Person" (i) to permit the
sale of the Dual Convertible Preferred Stock and issuance of rights to purchase
Common Stock to the Partnerships and (ii) to permit the Board of Directors of
Fleet to determine that a person who would otherwise be an "Acquiring Person"
had become such inadvertently and therefore allow divestiture of a sufficient
number of shares to avoid such designation. The Rights Agreement was further
amended on February 20, 1995 to amend the definition of "Acquiring Person to
permit the execution and delivery by Fleet of the Shawmut Merger Agreement and
the option agreement in connection therewith without Shawmut becoming an
Acquiring Person under the Rights Agreement.
The Rights will first become exercisable on the Distribution Date and could
then begin trading separately from the Common Stock. The Rights will expire on
November 21, 2000 (the "Final Expiration Date"), unless the Final Expiration
Date is extended or unless the Rights are earlier redeemed by Fleet.
In the event any person becomes an Acquiring Person, the Rights would give
holders (other than such Acquiring Person and its transferees) the right to buy,
for the Purchase Price, Common Stock (or, under certain circumstances, cash,
property or other debt or equity securities ("Common Stock equivalents")) with a
market value of twice the Purchase Price. In addition, at any time after any
person becomes an Acquiring Person, the Board may, at its option and in lieu of
any transaction described in the preceding sentence, exchange the outstanding
and exercisable Rights (other than Rights held by such Acquiring Person and its
transferees) for shares of Common Stock or Common Stock equivalents at an
exchange ratio of one share of Common Stock per Right, subject to certain
adjustments.
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In any merger or consolidation involving Fleet after the Rights become
exercisable, each Right will be converted into the right to purchase, for the
Purchase Price, common stock of the surviving corporation (which may be Fleet)
with a market value of twice the Purchase Price. The Board of Directors of Fleet
may amend the Rights Agreement or redeem the Rights for $.01 each at any time
until there is an Acquiring Person. Thereafter, the Board of Directors can amend
the Rights Agreement only to eliminate ambiguities or to provide additional
benefits to the holders of the Rights (other than the Acquiring Person).
Until a Right is exercised, the holder thereof, as such, will have no rights
as a shareholder of Fleet, including, without limitation, the right to vote or
to receive dividends.
The Purchase Price payable, and the number of shares of Junior Preferred
Stock or other securities or property issuable, upon exercise of the Rights, and
the number of outstanding Rights, are subject to customary antidilution
adjustments.
The Rights have certain "anti-takeover" effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire Fleet on
terms not approved by the Board of Directors of Fleet, except pursuant to an
offer conditioned on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors prior to the time that there is an Acquiring Person (at
which time holders of the Rights become entitled to exercise their Rights for
shares of Common Stock at one-half the market price), since until such time the
Rights generally may be redeemed by the Board of Directors of Fleet at $.01 per
Right.
SELECTED PROVISIONS IN THE ARTICLES OF FLEET
BUSINESS COMBINATIONS WITH RELATED PERSONS
The Articles require that neither Fleet nor any of its subsidiaries may
engage in a Business Combination with a Related Person unless such Business
Combination (a) was approved by an 80% vote of the Board of Directors prior to
the time the Related Person became such; (b) is approved by a vote of 80% of the
Continuing Directors and a majority of the entire Board and certain conditions
as to price and procedure are complied with; or (c) is approved by a vote of 80%
of Fleet's outstanding shares of Fleet capital stock entitled to vote generally
in the election of directors, voting as a single class. Under the Articles, a
"Business Combination" includes any merger or consolidation of Fleet or any of
its subsidiaries into or with a Related Person or any of its affiliates or
associates; any sale, exchange, lease, transfer or other disposition to or with
a Related Person of all, substantially all or any Substantial Part (defined as
assets having a value of more than 5% of the total consolidated assets of Fleet)
of the assets of Fleet or any of its subsidiaries; any purchase, exchange, lease
or other acquisition by Fleet or any of its subsidiaries of all or any
Substantial Part of the assets or business of a Related Person or any of its
affiliates or associates; any reclassification of securities, recapitalization
or other transaction which has the effect, directly or indirectly, of increasing
the proportionate amount of voting shares of Fleet or any subsidiary which are
beneficially owned by a Related Person; and the acquisition by a Related Person
of beneficial ownership of voting securities, securities convertible into voting
securities or any rights, warrants or options to acquire voting securities of a
subsidiary of Fleet; a "Related Person" includes any person who is the
beneficial owner of 10% or more of Fleet's voting shares prior to the
consummation of a Business Combination or any person who is an affiliate of
Fleet and was the beneficial owner of 10% or more of Fleet's voting shares at
any time within the five years preceding the date on which a binding agreement
providing for a Business Combination is authorized by the Board of Directors;
and the "Continuing Directors" are those individuals who were members of the
Fleet Board of Directors prior to the time a Related Person became the
beneficial owner of 10% or more of Fleet's voting stock or those individuals
designated as Continuing Directors (prior to their initial election as
directors) by a majority of the then Continuing Directors. To amend these
provisions, a super majority vote (80%) of the Board of Directors, a majority
vote of the Continuing Directors and a super majority vote (80%) of the
stockholders is required unless the amendment is recommended to the stockholders
by a majority of the
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Board of Directors and not less than 80% of the Continuing Directors, in which
event only the vote provided under Rhode Island law is required.
DIRECTORS
The Articles contain a number of additional provisions which are intended to
delay an insurgent's ability to take control of Fleet's Board of Directors, even
after an insurgent has obtained majority ownership of the Fleet Common Stock.
The Articles provide for a classified Board of Directors, consisting of three
classes of directors serving staggered three-year terms. Directors of Fleet may
only be removed for cause and only (a) by a vote of the holders of 80% of the
outstanding shares of Fleet stock entitled to vote thereon voting separately as
a class at a meeting called for that purpose or (b) by a vote of a majority of
the Continuing Directors and a majority of the Board of Directors as constituted
at that time. Vacancies on the Board of Directors, whether due to resignation,
death, incapacity or an increase in the number of directors, may only be filled
by the Board, acting by a vote of 80% of the directors then in office. The
Articles provide that the number of directors of Fleet (exclusive of directors
to be elected by the holders of any one or more series of the Preferred Stock
voting separately as a class or classes) that shall constitute the Board of
Directors shall be 13, unless otherwise determined by resolution adopted by a
super majority vote (80%) of the Board of Directors and a majority of the
Continuing Directors. Pursuant to such an adopted resolution, the number of
directors that may serve is currently fixed at 15, except in the event that
quarterly dividends are not paid on non-voting Preferred Stock as described
above, and may only be increased by the affirmative vote of 80% of the Board of
Directors and a majority of the Continuing Directors. A super majority vote
(80%) of the Board of Directors, a majority vote of the Continuing Directors and
a super majority vote (80%) of the outstanding shares of Fleet stock entitled to
vote thereon voting separately as a class are required to amend any of these
provisions.
DESCRIPTION OF WARRANTS
Fleet may issue Warrants for the purchase of Preferred Stock or Common
Stock. Warrants may be issued independently or together with Preferred Stock or
Common Stock offered by any Prospectus Supplement and may be attached to or
separate from any such Securities. Each series of Warrants will be issued under
a separate warrant agreement (a "Warrant Agreement") to be entered into between
Fleet and a bank or trust company, as warrant agent (the "Warrant Agent"). The
Warrant Agent will act solely as an agent of the Company in connection with the
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of Warrants. The following summary
of certain provisions of the Warrants does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the provisions of the
Warrant Agreement that will be filed with the Commission in connection with the
offering of such Warrants.
The Prospectus Supplement relating to any particular issue of Preferred
Stock Warrants or Common Stock Warrants will describe the terms of such
Warrants, including the following: (a) the title of such Warrants; (b) the
offering price for such Warrants, if any; (c) the aggregate number of such
Warrants; (d) the designation and terms of the Common Stock or Preferred Stock
purchasable upon exercise of such Warrants; (e) if applicable, the designation
and terms of the Securities with which such Warrants are issued and the number
of such Warrants issued with each such Security; (f) if applicable, the date
from and after which such Warrants and any Securities issued therewith will be
separately transferable; (g) the number of shares of Common Stock or Preferred
Stock purchasable upon exercise of a Warrant and the price at which such shares
may be purchased upon exercise; (h) the date on which the right to exercise such
Warrants shall commence and the date on which such right shall expire; (i) if
applicable, the minimum or maximum amount of such Warrants that may be exercised
at any one time; (j) information with respect to book-entry procedures, if any;
(k) the currency or currency units in which the offering price, if any, and the
exercise price are payable; (l) if applicable, a discussion of material United
States federal income tax considerations; (m) the antidilution provisions of
such Warrants, if any; (n) the redemption or call provisions, if any, applicable
to such Warrants; and (o) any additional terms of the Warrants, including terms,
procedures, and limitations relating to the exchange and exercise of such
Warrants.
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PLAN OF DISTRIBUTION
Fleet may sell Securities to or through underwriters, and also may sell
Securities through agents (which are registered broker-dealers or banks) which
may be affiliates.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from time
to time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Securities. Certain
restrictions relating to the distribution of Securities in connection with an
International Offering will be set forth in the applicable Prospectus
Supplement.
In connection with the sale of Securities, underwriters or agents acting on
Fleet's behalf may receive compensation from Fleet or from purchasers of
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers and agents that
participate in the distribution of Securities may be deemed to be underwriters
under the Act and any discounts or commissions received by them and any profits
on the resale of Securities by them may be deemed to be underwriting discounts
and commissions under the Act. Any such underwriter will be identified and any
such compensation will be described in the applicable Prospectus Supplement.
Under agreements which may be entered into by Fleet, underwriters, dealers
and agents who participate in the distribution of Securities may be entitled to
indemnification by Fleet against certain liabilities, including liabilities
under the Act, and to certain rights of contribution from Fleet.
If so indicated in the applicable Prospectus Supplement, Fleet will
authorize underwriters or other persons acting as Fleet's agents to solicit
offers by certain institutions to purchase Preferred Stock, Depositary Shares or
Warrants from Fleet pursuant to delayed delivery contracts providing for payment
and delivery on a future date or dates stated in the applicable Prospectus
Supplement. Each such contract will be for an amount not less than, and the
aggregate amount of such securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the applicable Prospectus
Supplement. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all cases
such institutions must be approved by Fleet. The obligations of any purchaser
under any such contract will not be subject to any condition except that (1) the
purchase of the Preferred Stock, Depositary Shares or Warrants shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject, and (2) if the Preferred Stock, Depositary Shares or
Warrants are also being sold to underwriters acting as principals for their own
account, the underwriters shall have purchased such Preferred Stock, Depositary
Shares or Warrants not sold for delayed delivery. The underwriters and such
other persons will not have any responsibility in respect of the validity or
performance of such contracts.
Certain of the underwriters and their associates and affiliates may be
customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for, Fleet
or one or more of its affiliates in the ordinary course of business.
EXPERTS
The consolidated financial statements of Fleet appearing in Fleet's 1994
Annual Report to Stockholders and incorporated by reference in Fleet's 1994
Annual Report on Form 10-K for the year ended December 31, 1994 (as amended by a
Form 10-K/A dated April 28, 1995), incorporated by reference herein (and
elsewhere in the Registration Statement) have been incorporated by reference
herein (and elsewhere in the Registration Statement) in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, and upon the
authority of said firm as experts
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in accounting and auditing. The report of KPMG Peat Marwick LLP covering the
December 31, 1994 financial statements refers to a change in the method of
accounting for investments.
The consolidated financial statements of Shawmut incorporated in this
Prospectus by reference to Fleet's Current Report on Form 8-K dated April 13,
1995, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL OPINIONS
The validity of the Notes offered hereby will be passed upon for Fleet by
Edwards & Angell, One Hospital Trust Plaza, Providence, Rhode Island 02903, and
for the Underwriters by Cravath, Swaine & Moore, 825 Eighth Avenue, New York,
New York 10019. V. Duncan Johnson, a partner of Edwards & Angell, is a director
of Fleet-RI, Fleet-MA and Fleet-CT and beneficially owns 4,052 shares of Common
Stock.
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- ------------------------------------------ --------------------------------
- ------------------------------------------ --------------------------------
NO DEALER, SALESPERSON OR OTHER
INDIVIDUAL HAS BEEN AUTHORIZED
TO GIVE ANY INFORMATION OR TO
MAKE ANY REPRESENTATIONS OTHER
THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE
IN THIS PROSPECTUS SUPPLEMENTAL
CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS SUPPLEMENT
AND THE PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN
AUTHORIZED BY FLEET OR BY THE $750,000,000
UNDERWRITERS. NEITHER THE
DELIVERY OF THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS NOR
ANY SALE MADE HEREUNDER AND
THEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF FLEET SINCE THE DATE
HEREOF. THIS PROSPECTUS SUPPLEMENT
AND THE PROSPECTUS DO NOT CONSTITUTE
AN OFFER OR SOLICITATION BY ANYONE [LOGO]
IN ANY STATE IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR FLEET FINANCIAL
SOLICITATION IS NOT QUALIFIED TO DO SO GROUP, INC.
OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
-------------------
-------------------
TABLE OF CONTENTS PREFERRED STOCK
PAGE COMMON STOCK
----
PROSPECTUS PROSPECTUS SUPPLEMENT
Available Information................ 2 -------------------
Incorporation of Certain
Documents by Reference............. 2
Fleet Financial Group, Inc........... 3
Consolidated Ratios of Earnings to
Fixed Charges and Dividends on
Preferred Stock.................... 6
Use of Proceeds...................... 7
Description of Preferred Stock....... 7 , 1995
Description of Depositary Shares..... 11
Description of Existing Preferred
Stock.............................. 14
Description of Common Stock.......... 18
Selected Provisions in the Articles
of Fleet........................... 20
Description of Warrants.............. 21
Plan of Distribution................. 22
Experts.............................. 22
Legal Opinions....................... 23
- ------------------------------------------ --------------------------------
- ------------------------------------------ --------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1(a) --Proposed form of Underwriting Agreement for Debt Securities.
1(b) --Proposed form of Underwriting Agreement for Preferred Stock and Common Stock.
1(c) --Proposed form of Selling Agency Agreement for Debt Securities (incorporated by
reference to Exhibit 1(b) of Registration Statement No. 33-45137).
2 --Agreement and Plan of Merger dated as of February 20, 1995, between the Registrant
and Shawmut National Corporation ("Shawmut") (incorporated by reference to Exhibit
2.1 of the Registrant's Current Report on Form 8-K dated February 20, 1995).
4(a) --Senior Indenture dated October 1, 1992 between the Registrant and The First
National Bank of Chicago, as Trustee (incorporated by reference to Exhibit 4(a) of
Registration Statement No. 33-50216).
4(b) --Form of Warrant Agreement for Warrants attached to Debt Securities (incorporated
by reference to Exhibit 4(b)(1) of Registration Statement No. 33-3573).
4(c) --Form of Warrant Agreement for Warrants not attached to Debt Securities
(incorporated by reference to Exhibit 4(b)(2) of Registration Statement No.
33-3573).
4(d) --Form of Note for Senior Debt Securities (included in Exhibit 4(a) on pages 18
through 27).
4(e) --Subordinated Indenture dated October 1, 1992 between the Registrant and The First
National Bank of Chicago, as Trustee (incorporated by reference to Exhibit 4(d) of
Registration Statement No. 33-50216), as supplemented by a First Supplemental
Indenture dated November 30, 1992 (incorporated by reference to Exhibit 4 to the
Registrant's Current Report on Form 8-K dated November 30, 1992).
4(f) --Form of Note for Subordinated Debt Securities (incorporated by reference to
Exhibit 4(e) of Registration Statement No. 33-40965).
4(g) --Form of Medium-Term Note (incorporated by reference to Exhibit 4(f) of
Registration Statement No. 33-50216).
4(h) --Restated Articles of Incorporation of the Registrant, as amended.
4(i) --Bylaws of the Registrant, as amended.
4(h) --Form of proposed Certificate of Designations (incorporated by reference to Exhibit
4(a) of Registration Statement No. 33-40967).
4(i) --Form of proposed Deposit Agreement (incorporated by reference to Exhibit 4(b) of
Registration Statement No. 33-40967).
4(j) --Form of Warrant Agreement for Warrants attached to Common Stock or Preferred Stock
(incorporated by reference to Exhibit 4(j) of Registration Statement No.
33-55555).
4(k) --Form of Warrant Agreement for Warrants not attached to Common Stock or Preferred
Stock (incorporated by reference to Exhibit 4(k) of Registration Statement No.
33-55555).
4(l) --Rights Agreement dated as of November 21, 1990 between the Registrant and Fleet
National Bank, as amended by a First Amendment thereto dated as of March 28, 1991
and a Second Amendment thereto dated as of July 12, 1991 and a Third Amendment
thereto dated as of February 20, 1995 (incorporated by reference to Exhibit 1 to
the Registrant's Current Report on Form 8-K dated November 21, 1990, Exhibits 4(a)
and 4(b) to the Registrant's Current Report on Form 8-K dated March 28, 1991 and
Exhibit to the Registrant's Current Report on Form 8-K dated February 20,
1995).
4(m) --Instruments defining the rights of security holders, including indentures
(Registrants has no instruments defining the rights of holders of equity or debt
securities where the amount of securities authorized thereunder exceeds 10% of the
total assets of Registrants and its subsidiaries on a consolidated basis.
Registrants hereby agrees to furnish a copy of any such instrument to the
Commission upon request).
</TABLE>
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<TABLE>
<S> <C>
4(n) --Form of Rights Certificate for stock purchase rights issued to Whitehall
Associates, L.P., and KKR Partners II, L.P. (incorporated by reference to Exhibit
4(c) of Fleet's Current Report on Form 8-K dated July 12, 1991).
5 --Opinion of Edwards & Angell as to legality (previously filed).
12(a) --Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to
Exhibit 12 of Fleet's Quarterly Report on Form 10-Q dated September 30, 1995).
12(b) --Computation of Ratio of Earnings to Fixed Charges and Dividends on Preferred
Stock.
23(a) --Consent of KPMG Peat Marwick LLP (previously filed).
23(b) --Consent of Price Waterhouse LLP (previously filed).
23(c) --Consent of Edwards & Angell (previously filed).
24 --Power of Attorney of certain officers and directors (previously filed).
25 --Form T-1 Statement of Eligibility and Qualification of The First National Bank of
Chicago, as Senior Trustee and as Subordinated Trustee (previously filed).
99(a) --Stock Option Agreement dated February 20, 1995 between Registrant and Shawmut as
to stock of Registrant (incorporated by reference to Exhibit 99.2 of the
Registrant's Current Report on Form 8-K dated February 20, 1995)
99(b) --Stock Option Agreement dated February 20, 1995 between Registrant and Shawmut as
to stock of Shawmut (incorporated by reference to Exhibit 99.1 of the Registrant's
Current Report on Form 8-K dated February 20, 1995).
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 unless the information required to be included in
such post-effective amendment is contained in a periodic report filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 and incorporated herein by reference;
(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 unless the information required to be included in
such post-effective amendment is contained in a periodic report filed by the
Registration pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 and incorporated herein by reference;
(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;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a)
II-2
<PAGE>
or 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to a new registration
statement relating to the securities offered herein, 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
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to Item 15 of this Registration Statement, 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 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 policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
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<PAGE>
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
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Form S-3 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Providence, and State of Rhode Island,
on November 21, 1995.
FLEET FINANCIAL GROUP, INC.
By: /s/ WILLIAM C. MUTTERPERL
----------------------------------
WILLIAM C. MUTTERPERL
Secretary
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Form S-3 Registration Statement has been signed by the following
persons in the capacities indicated on November 21, 1995.
SIGNATURE TITLE
--------- -----
* Chairman and President
.......................................... Chief Executive Officer
TERRENCE MURRAY and Director
* Executive Vice President and
.......................................... Chief Financial Officer
EUGENE M. MCQUADE
* Controller
..........................................
ROBERT C. LAMB, JR.
* Director
..........................................
WILLIAM BARNET, III
* Director
..........................................
BRADFORD R. BOSS
* Director
..........................................
PAUL J. CHOQUETTE, JR.
* Director
..........................................
JAMES F. HARDYMON
* Director
..........................................
ROBERT M. KAVNER
* Director
..........................................
LAFAYETTE KEENEY
* Director
..........................................
RAYMOND C. KENNEDY
* Director
..........................................
RUTH R. MCMULLIN
II-4
<PAGE>
SIGNATURE TITLE
--------- -----
* Director
..........................................
ARTHUR C. MILOT
* Director
..........................................
THOMAS D. O'CONNOR
* Director
..........................................
MICHAEL B. PICOTTE
* Director
..........................................
JOHN A. REEVES
* Director
..........................................
JOHN R. RIEDMAN
* Director
..........................................
JOHN S. SCOTT
*By: /s/ WILLIAM C. MUTTERPERL
---------------------------------
WILLIAM C. MUTTERPERL
Secretary
II-5
<PAGE>
EXHIBIT INDEX
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<TABLE>
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1(a) --Proposed form of Underwriting Agreement for Debt Securities.
1(b) --Proposed form of Underwriting Agreement for Preferred Stock and Common Stock.
1(c) --Proposed form of Selling Agency Agreement for Debt Securities (incorporated by
reference to Exhibit 1(b) of Registration Statement No. 33-45137).
2 --Agreement and Plan of Merger dated as of February 20, 1995, between the Registrant
and Shawmut National Corporation ("Shawmut") (incorporated by reference to Exhibit
2.1 of the Registrant's Current Report on Form 8-K dated February 20, 1995).
4(a) --Senior Indenture dated October 1, 1992 between the Registrant and The First
National Bank of Chicago, as Trustee (incorporated by reference to Exhibit 4(a) of
Registration Statement No. 33-50216).
4(b) --Form of Warrant Agreement for Warrants attached to Debt Securities (incorporated
by reference to Exhibit 4(b)(1) of Registration Statement No. 33-3573).
4(c) --Form of Warrant Agreement for Warrants not attached to Debt Securities
(incorporated by reference to Exhibit 4(b)(2) of Registration Statement No.
33-3573).
4(d) --Form of Note for Senior Debt Securities (included in Exhibit 4(a) on pages 18
through 27).
4(e) --Subordinated Indenture dated October 1, 1992 between the Registrant and The First
National Bank of Chicago, as Trustee (incorporated by reference to Exhibit 4(d) of
Registration Statement No. 33-50216), as supplemented by a First Supplemental
Indenture dated November 30, 1992 (incorporated by reference to Exhibit 4 to the
Registrant's Current Report on Form 8-K dated November 30, 1992).
4(f) --Form of Note for Subordinated Debt Securities (incorporated by reference to
Exhibit 4(e) of Registration Statement No. 33-40965).
4(g) --Form of Medium-Term Note (incorporated by reference to Exhibit 4(f) of
Registration Statement No. 33-50216).
4(h) --Restated Articles of Incorporation of the Registrant, as amended.
4(i) --Bylaws of the Registrant, as amended.
4(h) --Form of proposed Certificate of Designations (incorporated by reference to Exhibit
4(a) of Registration Statement No. 33-40967).
4(i) --Form of proposed Deposit Agreement (incorporated by reference to Exhibit 4(b) of
Registration Statement No. 33-40967).
4(j) --Form of Warrant Agreement for Warrants attached to Common Stock or Preferred Stock
(incorporated by reference to Exhibit 4(j) of Registration Statement No.
33-55555).
4(k) --Form of Warrant Agreement for Warrants not attached to Common Stock or Preferred
Stock (incorporated by reference to Exhibit 4(k) of Registration Statement No.
33-55555).
4(l) --Rights Agreement dated as of November 21, 1990 between the Registrant and Fleet
National Bank, as amended by a First Amendment thereto dated as of March 28, 1991
and a Second Amendment thereto dated as of July 12, 1991 and a Third Amendment
thereto dated as of February 20, 1995 (incorporated by reference to Exhibit 1 to
the Registrant's Current Report on Form 8-K dated November 21, 1990, Exhibits 4(a)
and 4(b) to the Registrant's Current Report on Form 8-K dated March 28, 1991 and
Exhibit to the Registrant's Current Report on Form 8-K dated February 20,
1995).
4(m) --Instruments defining the rights of security holders, including indentures
(Registrants has no instruments defining the rights of holders of equity or debt
securities where the amount of securities authorized thereunder exceeds 10% of the
total assets of Registrants and its subsidiaries on a consolidated basis.
Registrants hereby agrees to furnish a copy of any such instrument to the
Commission upon request).
</TABLE>
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<TABLE>
<S> <C>
4(n) --Form of Rights Certificate for stock purchase rights issued to Whitehall
Associates, L.P., and KKR Partners II, L.P. (incorporated by reference to Exhibit
4(c) of Fleet's Current Report on Form 8-K dated July 12, 1991).
5 --Opinion of Edwards & Angell as to legality (previously filed).
12(a) --Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to
Exhibit 12 of Fleet's Quarterly Report on Form 10-Q dated September 30, 1995).
12(b) --Computation of Ratio of Earnings to Fixed Charges and Dividends on Preferred
Stock.
23(a) --Consent of KPMG Peat Marwick LLP (previously filed).
23(b) --Consent of Price Waterhouse LLP (previously filed).
23(c) --Consent of Edwards & Angell (previously filed).
24 --Power of Attorney of certain officers and directors (previously filed).
25 --Form T-1 Statement of Eligibility and Qualification of The First National Bank of
Chicago, as Senior Trustee and as Subordinated Trustee (previously filed).
99(a) --Stock Option Agreement dated February 20, 1995 between Registrant and Shawmut as
to stock of Registrant (incorporated by reference to Exhibit 99.2 of the
Registrant's Current Report on Form 8-K dated February 20, 1995)
99(b) --Stock Option Agreement dated February 20, 1995 between Registrant and Shawmut as
to stock of Shawmut (incorporated by reference to Exhibit 99.1 of the Registrant's
Current Report on Form 8-K dated February 20, 1995).
</TABLE>
Exhibit 1(a)
FLEET FINANCIAL GROUP, INC.
Underwriting Agreement
New York, New York
[ Date ]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Fleet Financial Group, Inc., a Rhode Island corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), the principal amount of its debt securities
identified in Schedule I hereto (the "Debt Securities"), to be issued under
an indenture dated as of October 1, 1992, (the "Indenture") between the
Company and the trustee named in Schedule I hereto (the "Trustee"). If so
indicated on Schedule I hereto, the Company also proposes to issue warrants
(the "Warrants") to purchase the aggregate principal amount listed in
Schedule I hereto of the debt securities identified in Schedule I hereto
(the "Warrant Securities"). The Warrants, if any, are to be issued
pursuant to the Warrant Agreement listed in Schedule I hereto (the "Warrant
Agreement") between the Company and the Warrant Agent listed in Schedule I
hereto (the "Warrant Agent"). The Debt Securities and the Warrants, if
any, are hereinafter referred to as the "Purchased Securities". The
Purchased Securities and the Warrant Securities are referred to herein as
the "Securities". If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed
to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
-------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in
paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as
so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for
<PAGE>
2
the use of Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a
basic prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective.
The offering of the Securities is a Delayed Offering and,
accordingly, it is not necessary that any further information
with respect to the Securities and the offering thereof required
by the Act and the rules thereunder to be included in the Final
Prospectus have been included in an amendment to such
registration statement prior to the Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus
included in such registration statement relating to the
Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Pro-
spectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. If the Rule 434 Delivery
Alternative is used, the Company will also file the Rule 434 Term
Sheet in accordance with Rule 434. As filed, such Rule 434 Term
Sheet shall contain all the information required by Rule 434, and
except to the extent the Representatives shall agree in writing
to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein. Upon your request, but not without
your agreement, the Company will also file
<PAGE>
3
a Rule 462(b) Registration Statement in accordance with Rule
462(b).
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of such
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In
the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities and the offering
thereof. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain
all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
If the Rule 434 Delivery Alternative is used, the Company will
also file the Rule 434 Term Sheet in accordance with Rule 434.
As filed, such Rule 434 Term Sheet shall contain all the
information required by Rule 434, and except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
<PAGE>
4
latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
Upon your request, but not without your agreement, the Company
will also file a Rule 462(b) Registration Statement in accordance
with Rule 462(b).
.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final Pro-
spectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the
Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the Company makes no representations or warranties as to
-------
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement, any post-effective
amendment or amendments thereto and any Rule 462(b) Registration
<PAGE>
5
Statement became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred
to in paragraph (a) above contained in the Registration Statement at
the Effective Date including, in the case of a Non-Delayed Offering,
any Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case of a Non-
Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the Registration Statement
at the Effective Date. If the Rule 434 Delivery Alternative is used,
such term shall also include the Basic Prospectus and the Rule 434
Term Sheet, taken together. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended.
Such term shall include any Rule 430A Information and Rule 434
Information deemed to be included therein at the Effective Date as
provided by Rule 430A and Rule 434, respectively. "Rule 415",
"Rule 424", "Rule 430A", "Rule 434", "Rule 462(b)" and "Regulation S-
K" refer to such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. "Rule 434
Delivery Alternative" shall mean the delivery alternative permitted by
Rule 434. "Rule 434 Information" shall mean any information to be
included in a Rule 434 Term Sheet. "Rule 434 Term Sheet" shall mean
the term sheet or abbreviated term sheet delivered by the Underwriters
to investors and filed by the Company with the Commission pursuant to
Rule 434. "Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the final Delayed Offering covered by the
initial
<PAGE>
6
Registration Statement. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. A
"Non-Delayed Offering" shall mean an offering of securities which is
intended to commence promptly after the effective date of a regis-
tration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect
to the securities so offered must be included in such registration
statement at the effective date thereof. A "Delayed Offering" shall
mean an offering of securities pursuant to Rule 415 which does not
commence promptly after the effective date of a registration
statement, with the result that only information required pursuant to
Rule 415 need be included in such registration statement at the
effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and conditions and
------------------
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of the Securities
set forth opposite such Underwriter's name in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the
Underwriters are herein sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery Contracts
<PAGE>
7
as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes
therein as the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor, the
Company will pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth in Schedule I
hereto of the principal amount of the Securities for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with institu-
tional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and
charitable institutions. The Company will enter into Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not
less than the minimum principal amount set forth in Schedule I hereto and
the aggregate principal amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Secu-
rities to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same proportion
to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears
to the aggregate principal amount set forth in Schedule II hereto, except
to the extent that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company in writing; provided,
--------
however, that the total principal amount of Securities to be purchased by
- -------
all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment for the
---------------------
Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such
date and time of delivery and payment for the Underwriters' Securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities
<PAGE>
8
shall be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of
the Company by either certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in next day funds or in
Federal or similar same day funds as set forth in Schedule I. Delivery of
the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at
the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York,
New York, not later than 1:00 p.m. on the business day prior to the Closing
Date.
4. Agreements. The Company agrees with the several Underwriters
-----------
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement or Rule 462(b)
Registration Statement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. If the Rule 434 Delivery
Alternative is used, the Company will also cause the Rule 434 Term
Sheet, properly completed, to be filed with the Commission pursuant to
Rule 434 within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. Upon your
request, the Company will cause the Rule 462(b) Registration
Statement, properly completed, to be filed with the Commission
pursuant to Rule 462(b) and will provide evidence satisfactory to
<PAGE>
9
the Representatives of such filing. The Company will promptly advise
the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, any supplement
thereto, any Rule 434 Term Sheet or any Rule 462(b) Registration
Statement shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iv) of any request by the Commission
for any amendment of the Registration Statement or supplement to the
Final Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effec-
tiveness of the Registration Statement or the institution or threaten-
ing of any proceeding for that purpose and (vi) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhib
<PAGE>
10
its thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of
any Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or announce the offering of, any senior debt
securities.
(g) The Company confirms as of the date hereof that it has
complied with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
----------------------------------------------------
Cuba, and the Company further agrees that if it commences engaging in
----
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or
with any person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such business
or change, as appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not
later
<PAGE>
11
than (i) 6:00 p.m. New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior
to 3:00 p.m. New York City time on such date or (ii) 12:00 Noon on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 p.m. New York
City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b), or if the
filing of the Rule 434 Term Sheet is required pursuant to Rule 434,
the Rule 434 Term Sheet will be filed in the manner and within the
time period required by Rule 434; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Edwards & Angell, counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of the Company and Fleet National Bank ("Fleet
Bank-RI") and any other subsidiary or subsidiaries which the
Representatives may reasonably request (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation or national
banking association in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct
its business as described in the Final Prospectus; the Company is
duly qualified to do business as a foreign corporation under the
laws of the State of New York and neither the Company nor Fleet
Bank-RI or any such other Subsidiaries is required to be
qualified to do business as a foreign corporation under the laws
of any other jurisdiction; and the Company is duly registered as
a bank holding company under the Bank Holding Company Act of
1956, as amended;
(ii) all the outstanding shares of the capital stock of
Fleet Bank-RI and any such other Subsidiaries have been duly and
validly authorized and issued and are fully paid and (except as
provided in 12 U.S.C. Sec. 55) nonassessable, and, except as
otherwise set forth or incorporated by reference in the Final
Prospectus, all outstanding
<PAGE>
12
shares of capital stock of Fleet Bank-RI and such other
Subsidiaries are owned by the Company free and clear of any
perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims,
liens or encumbrances;
(iii) the Purchased Securities conform to the description
thereof contained in the Final Prospectus; and, if the Securities
are to be listed on any stock exchange, authorization therefor
has been given, subject to official notice of issuance and evi-
dence of satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting
documents with respect to the Securities with such stock exchange
and such counsel has no reason to believe that the Securities
will not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iv) the Indenture and the Warrant Agreement, if any, have
been duly authorized, executed and delivered; the Indenture has
been duly qualified under the Trust Indenture Act; and the
Indenture and the Warrant Agreement, if any, constitute legal,
valid and binding instruments enforceable against the Company in
accordance with their respective terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganiza-
tion, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to the
availability of equitable remedies which are discretionary with
the courts); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions
of the Indenture and delivered pursuant to the Warrant Agreement,
in the case of Warrant Securities, and delivered to and paid for
by the Underwriters pursuant to this Agreement, in the case of
the Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(v) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the
<PAGE>
13
Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(vi) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b), or if
the Rule 434 Delivery Alternative was used, the required filing
of the Rule 434 Term Sheet has been made in the manner and time
period required by Rule 434; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to
believe that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
at the Closing Date the Final Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vii) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
(viii) without expressing any opinion with respect to the
Warrant Securities, no consent, approval, authorization or order
of any court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts, except such as have been obtained
under the Act
<PAGE>
14
and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Delayed Deliv-
ery Contracts will conflict with, result in a breach of, or
constitute a default under the charter or by-laws of the Company
or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound, or any order or regulation
known to such counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
the Company or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Rhode Island or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine
& Moore, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, any Delayed Delivery Contracts, the Regis-
tration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(d) The Company shall have furnished to the
<PAGE>
15
Representatives a certificate of the Company, signed by the Chairman
of the Board, the President or any Executive Vice President and the
principal financial or accounting officer or treasurer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, KPMG Peat Marwick shall have furnished to
the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as
of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the
<PAGE>
16
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated condensed financial statements made available by the
Company and its subsidiaries; carrying out certain specified
procedures (but not an audit in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive and audit committees of
the Company; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing
came to their attention which caused them to believe that:
(1) the amounts in the unaudited "Summary Consolidated
Financial Data", if any, included in the Final Prospectus do
not agree with the corresponding amounts in the audited
consolidated condensed financial statements or analyses
prepared by the Company from which such amounts were
derived; or
(2) any unaudited consolidated financial statements
included or incorporated in the Registration Statement and
the Final Prospectus do not comply in form in all material
respects with applicable accounting requirements and with
the published rules and regulations of the Commission with
respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and
said unaudited consolidated condensed financial statements
are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated in the Registration Statement and
the Final Prospectus;
(3) with respect to the period subsequent to the date
of the most recent consolidated financial statements (other
than any capsule information), audited or unaudited, in or
incorporated in the Registration
<PAGE>
17
Statement and the Final Prospectus, there were any changes,
at a specified date not more than five business days prior
to the date of the letter, in the long-term debt of the
Company or capital stock of the Company or decreases in the
stockholders' equity of the Company as compared with the
amounts shown on the most recent consolidated balance sheet
included or incorporated in the Registration Statement and
the Final Prospectus, or for the period from the date of the
most recent consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding
year; in consolidated net interest income, consolidated net
interest income after provision for possible loan losses,
consolidated income before income taxes or in total or per
share amounts of consolidated net income of the Company,
except in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; or
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
amounts set forth in the unaudited financial statements for
the same periods or were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information set forth under the captions "Fleet
Financial Group, Inc.", "Recent Developments" and "Consolidated
Ratios of
<PAGE>
18
Earnings to Fixed Charges" in the Final Prospectus, the
information included or incorporated in Items 1, 6 and 7 of the
Company's Annual Report on Form 10-K incorporated in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration State-
ment (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been
any decrease in the ratings of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating.
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents (including an opinion of counsel for the Company with
respect to the foreign qualification of specified subsidiaries) as the
Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract
<PAGE>
19
Securities arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancelation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all out-
of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as in-
curred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be
-------- --------
liable in any such
<PAGE>
20
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such
person did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page, under the heading "Underwriting" or "Plan of Distribution" and,
if Schedule I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party
<PAGE>
21
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to appoint counsel satisfactory to such indemnified party to represent the
indemnified party in such action; provided, however, that if the defendants
-------- -------
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to appoint counsel to
defend such action and approval by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party under
this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses
of more than one separate counsel (plus any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7,
representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 7 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) to which the Company and one or more of the Underwriters may
<PAGE>
22
be subject in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the Securities
specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter
-------- -------
(except as may be provided in any agreement among underwriters relating to
the offering of the Securities) be responsible for any amount in excess of
the underwriting discount applicable to the Securities purchased by such
Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of the Act shall have the
same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (y) and (z) of
this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to
so notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
--------------------------
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule
II hereto bears to the aggregate amount of Securities set forth opposite
the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
- -------- -------
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if
<PAGE>
23
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination
------------
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York, Rhode Island, Connecticut, Maine, New Hampshire or
Massachusetts state authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of
a national emergency or war or other calamity or crisis the effect of which
on the financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing
--------
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 50 Kennedy Plaza,
Providence, Rhode Island 02903, attention of the Senior Vice President and
General Counsel.
<PAGE>
24
12. Successors. This Agreement will inure to the benefit of and
-----------
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
---------------
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By:
---------------------------------
Title: Vice President - Finance
CONFIRMED AND ACCEPTED,
as of the date first above written:
BY:
- -------------------------------------
For themselves and as Representative of the other
Underwriters named in Schedule II hereto.
Exhibit 1(b)
FLEET FINANCIAL GROUP INC.
Preferred Stock
($1 par value)
Underwriting Agreement
----------------------
New York, New York
[ Date ]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Fleet Financial Group, Inc., a Rhode Island corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), the number of shares of preferred stock of the
Company identified in Schedule I hereto (said shares to be issued and sold
by the Company being hereinafter called the "Underwritten Securities").
The Company also proposes to grant to the Underwriters an option to
purchase up to such additional number of shares of preferred stock of the
Company as is specified in Schedule I hereto (the "Option Securities";
together with the Underwritten Securities, the "Securities") to cover over-
allotments. If "Depositary Receipt Arrangements" is specified in
Schedule I hereto, the Securities are to be deposited by you or on your
behalf against delivery of Depositary Receipts (the "Depositary Receipts")
to be issued by the bank or trust company identified in Schedule I hereto
as Depositary (the "Depositary"), under the deposit agreement described in
Schedule I hereto (the "Deposit Agreement"), among the Company, the
Depositary and the holders from time to time of the Depositary Receipts
issued thereunder. Any Depositary Receipts will evidence Depositary Shares
(the "Depositary Shares") and each Depositary Share will represent a
fraction of a Security, as specified in Schedule I hereto. Except where
the context otherwise requires, references to Securities herein shall
include any related Depositary Shares and associated Depositary Receipts.
If the firm or firms listed in Schedule II hereto include only the firm or
firms listed in
<PAGE>
2
Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
-------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in
paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed offering (as
so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a
basic prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective.
The offering of the Securities is a Delayed Offering and,
accordingly, it is not necessary that any further information
with respect to the Securities and the offering thereof required
by the Act and the rules thereunder to be included in the Final
Prospectus have been included in an amendment to such
registration statement prior to the Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus
included in such registration statement relating to the
Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not
<PAGE>
3
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final Prospectus) as
the company has advised you, prior to the Execution Time, will be
included or made therein. If the Rule 434 Delivery Alternative
is used, the Company will also file the Rule 434 Term Sheet in
accordance with Rule 434. As filed, such Rule 434 Term Sheet
shall contain all the information required by Rule 434, and
except to the extent the Representatives shall agree in writing
to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein. Upon your request, but not without
your agreement, the Company will also file a Rule 462(b)
Registration Statement in accordance with Rule 462(b).
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of such
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In
the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities
<PAGE>
4
and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with
all other such required information, with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or
made therein. If the Rule 434 Delivery Alternative is used, the
Company will also file the Rule 434 Term Sheet in accordance with
Rule 434. As filed, such Rule 434 Term Sheet shall contain all
the information required by Rule 434, and except to the extent
the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
Upon your request, but not without your agreement, the Company
will also file a Rule 462(b) Registration Statement in accordance
with Rule 462(b).
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the
Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the
<PAGE>
5
statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
-------- -------
no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement, any post-effective
amendment or amendments thereto and any Rule 462(b) Registration
Statement became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred
to in paragraph (a) above contained in the Registration Statement at
the Effective Date including, in the case of a Non-Delayed Offering,
any Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case of a Non-
Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the Registration Statement
at the Effective Date. If the Rule 434 Delivery Alternative is used,
such term shall also include the Basic Prospectus and the Rule 434
Term Sheet, taken together. "Registration Statement" shall
<PAGE>
6
mean the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements,
as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as
so amended. Such term shall include any Rule 430A Information and
Rule 434 Information deemed to be included therein at the Effective
Date as provided by Rule 430A and Rule 434, respectively. "Rule 415",
"Rule 424", "Rule 43OA", "Rule 434", "Rule 462(b)" and "Regulation S-
K" refer to such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. "Rule 434
Delivery Alternative" shall mean the delivery alternative permitted by
Rule 434. "Rule 434 Information" shall mean any information to be
included in a Rule 434 Term Sheet. "Rule 434 Term Sheet" shall mean
the term sheet or abbreviated term sheet delivered by the Underwriters
to investors and filed by the Company with the Commission pursuant to
Rule 434. "Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the final Delayed Offering covered by the
initial Registration Statement. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case
may be, deemed to be
<PAGE>
7
incorporated therein by reference. A "Non-Delayed Offering" shall
mean an offering of securities which is intended to commence promptly
after the effective date of a registration statement, with the result
that, pursuant to Rules 415 and 430A, all information (other than
Rule 430A information) with respect to the securities so offered must
be included in such registration statement at the effective date
thereof. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered. Whether the offering of the Securities is
a Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
2. Purchase and Sale. (a)(i) Subject to the terms and
------------------
conditions and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto, the number
of shares of the Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides for the sale
of Securities pursuant to delayed delivery arrangements, the respective
number of shares of Securities to be purchased by the Underwriters shall be
as set forth in Schedule II hereto less the respective number of shares of
Contract Securities determined as provided in Section 2(a)(ii) below.
Securities to be purchased by the Underwriters are herein sometimes called
the "Underwriters' Securities" and Securities to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities".
(ii) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes
therein as the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor, the
Company will pay to the Representatives, for the account of the
Underwriters, on the
<PAGE>
8
Closing Date, the percentage set forth in Schedule I hereto of the
aggregate liquidation preference of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and
charitable institutions. The Company will enter into Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not
less than the minimum number of shares set forth in Schedule I hereto and
the aggregate number of shares of Contract Securities may not exceed the
maximum aggregate number of shares set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The number of shares of
Securities to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by the number of shares which shall bear the same
proportion to the total number of shares of Contract Securities as the
number of shares of Securities set forth opposite the name of such
Underwriter bears to the aggregate number of shares set forth in
Schedule II hereto, except to the extent that you determine that such
reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total number of shares of
-------- -------
Securities to be purchased by all Underwriters shall be the aggregate
number of shares set forth in Schedule II hereto less the aggregate number
of shares of Contract Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, the Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option nay be exercised in whole or
in part at any time (but not more than once) on or before the 30th day
after the date of the Final Prospectus upon written or telegraphic notice
by the Representatives to the Company setting forth the number of shares of
the Option Securities as to which the several Underwriters are exercising
the option and the settlement date. Delivery of certificates for the
shares of Option Securities, and payment therefor,
<PAGE>
9
shall be made as provided in Section 3 hereof. The number of shares of the
Option Securities to be purchased by each Underwriter shall be the number
of shares which shall bear the same proportion to the total number of
shares of the Option Securities to be purchased by the several Underwriters
an the number of shares of Securities set forth opposite the name of such
Underwriter bears to the aggregate number of shares set forth in
Schedule II hereto, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
---------------------
Underwriters' Securities shall be made on the date and at the time specified
in Schedule I hereto (or such later date not later than five business days
after such specified date as the Representatives shall designate), which
date and time may be postponed by agreement between the Representatives and
the Company or as provided in Section 8 hereof (such date and time of
delivery and payment for the Underwriters' Securities being herein called
the "Closing Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by either certified or official bank check or checks drawn on or by a
New York Clearing House bank and payable in next-day funds or in Federal or
similar same day funds as set forth in Schedule I. Delivery of the
Underwriters' Securities shall be made at such location an the
Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at
the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names (including the
nominee for any depositary which will hold Securities to be established for
"book entry" issuance and transfer) and in such denominations as the
Representatives may request not less than three full business days in
advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York,
New York, not later than 1:00 p.m. on the business day prior to the Closing
Date.
If the option provided for in Section 2(b) hereof is exercised
after the third business day prior to the
<PAGE>
10
Closing Date, the Company will deliver (at the expense of the Company) to
the Representatives, on the date specified by the Representatives (which
shall be within three business days after exercise of said option),
certificates for the Option Securities in such names and denominations as
the Representatives shall have requested against payment of the purchase
price thereof to or upon the order of the Company by certified or official
bank check or checks drawn on or by a New York Clearing House bank and
payable in next-day funds or in Federal or similar same day funds as set
forth in Schedule I. If settlement for the Option Securities occurs after
the Closing Date, the Company will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon
receipt of, supplemental opinions certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing
Date pursuant to Section 5 hereof.
Notwithstanding the preceding paragraphs, if "Depositary Receipt
Arrangements" is specified in Schedule I hereto, certificates representing
Securities shall be delivered in the names of the Representatives. Such
certificates shall be delivered by the Representatives to the Depositary
against delivery of Depositary Receipts representing Depositary Shares.
Such Depositary Receipts shall be issued in such denominations and
registered in such names as the Representatives shall request and shall be
made available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 p.m. on the
business day prior to the due date for delivery thereof.
4. Agreements. The Company agrees with the several Underwriters
-----------
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment
<PAGE>
11
or supplement or Rule 462(b) Registration Statement to which you
reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus, properly completed, and any supple-
ment thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. If the Rule 434 Delivery Alternative is used, the
Company will also cause the Rule 434 Term Sheet, properly completed,
to be filed with the Commission pursuant to Rule 434 within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. Upon your request, the Company
will cause the Rule 462(b) Registration Statement, properly completed,
to be filed with the Commission pursuant to Rule 462(b) and will
provide evidence satisfactory to the Representatives of such filing.
The Company will promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, shall have become effective, (ii) when the
Final Prospectus, any supplement thereto, any Rule 434 Term Sheet or
any Rule 462(b) Registration Statement shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination
of the offering of the Securities, any amendment to the Registration
Statement shall have been filed or became effective, (iv) of any
request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and
(vi) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state
<PAGE>
12
any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading,
or if it shall be necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 4, an amendment or supplement which
will correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the date set forth in Schedule I hereto, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of (i) any debt securities
issued or guaranteed by the Company, (ii) shares of any class of
capital stock of the Company (other than the Securities) which is
preferred as to the payment of dividends, or as to the distribution of
assets upon any
<PAGE>
13
liquidation or dissolution of the Company, over shares of any other
class of capital stock of the Company or if the Securities are
convertible into other securities of the Company, any of such other
securities (other than shares of common stock of the Company issued
pursuant to any employee stock benefit plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution
Time).
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
----------------------------------------------------
Cuba, and the Company further agrees that if it commences engaging in
----
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or
with any person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such business
or change, as appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will became effective not
later than (i) 6:00 p.m. New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination
<PAGE>
14
occurred after 3:00 p.m. New York City time on such date; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Final Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by
Rule 424(b), or if the filing of the Rule 434 Term Sheet is required
pursuant to Rule 434, the Rule 434 Term Sheet will be filed in the
manner and within the time period required by Rule 434; and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Edwards & Angell, counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of the Company, Fleet National Bank ("Fleet Bank -
RI") and if any Depositary is a subsidiary of the Company, the
Depositary and any other subsidiary or subsidiaries which the
Representatives may reasonably request (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation or national
banking association in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct
its business as described in the Final Prospectus; the Company is
duly qualified to do business as a foreign corporation under the
laws of the State of New York; and neither the Company, nor Fleet
Bank - RI or any such other Subsidiary is required to be
qualified to do business as a foreign corporation under the laws
of any other jurisdiction; and the Company is duly registered as
a bank holding company under the Bank Holding Company Act of
1956, as amended;
(ii) all the outstanding shares of the capital stock of Fleet
Bank - RI and any such other Subsidiaries have been duly and
validly authorized and issued and are fully paid and (except as
provided in 12 U.S.C. Sec. 55 in the case of the Bank)
nonassessable, and, except as otherwise set
<PAGE>
15
forth in the Final Prospectus, all outstanding shares of capital
stock of Fleet Bank - RI and such other Subsidiaries are owned by
the Company, free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities and any Depositary
Receipts conform to the description thereof contained in the
Final Prospectus; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; and, if the Securities or related Depositary
Shares, if any, are to be listed on any stock exchange,
authorization therefor has been given, subject to official notice
of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all
required supporting documents with respect to the Securities or
such Depositary Shares, if any, with such stock exchange and such
counsel has no reason to believe that the Securities or such
Depositary Shares, if any, will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is
not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, which is not described or filed as
required;
(v) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final
<PAGE>
16
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b), or if the Rule 434
Delivery Alternative was used, the required filing of the Rule
434 Term Sheet has been made in the manner and time period
required by Rule 434; to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have
been instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical information contained therein as
to which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of the
Act and the Exchange Act and the respective rules thereunder; and
such counsel has no reason to believe that at the Effective Date
the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading or that at the Closing Date the Final Prospectus
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(vi) this Agreement, any Deposit Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and
delivered by the Company and, if any Depositary is also a
Subsidiary, by such Depositary;
(vii) no consent, approval, authorization or order of any
court or governmental agency or body in required for the
consummation of the transactions contemplated herein or in any
Deposit Agreement or Delayed Delivery Contracts, except such as
have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion)
as have been obtained;
<PAGE>
17
(viii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Deposit
Agreement or Delayed Delivery Contracts will conflict with,
result in a breach of, or constitute a default under the charter
or by-laws of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound, or any
order or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(ix) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Rhode Island or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, any Deposit Agreement or Delayed Delivery
Contracts, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
<PAGE>
18
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the
President or any Executive Vice President and the principal financial
or accounting officer or treasurer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, KPMG Peat Marwick shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as
of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of
<PAGE>
19
the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated condensed financial statements made available by the
Company and its subsidiaries; carrying out certain specified
procedures (but not an audit in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive and audit committees of
the Company; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing
came to their attention which caused them to believe that:
(1) the amounts in the unaudited "Summary Consolidated
Financial Data", if any, included in the Final Prospectus do
not agree with the corresponding amounts in the audited
consolidated condensed financial statements or analyses
prepared by the Company from which such amounts were
derived; or
(2) any unaudited consolidated financial statements
included or incorporated in the Registration Statement and
the Final Prospectus do not comply in form in all material
respects with applicable accounting requirements and with
the published rules and
<PAGE>
20
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited
consolidated condensed financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus;
(3) with respect to the period subsequent to the date
of the most recent consolidated financial statements (other
than any capsule information), audited or unaudited, in or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the
letter, in the long-term debt of the Company or capital
stock of the Company or decreases in the stockholders'
equity of the Company as compared with the amounts shown on
the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most
recent consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding
year, in consolidated net interest income, consolidated net
interest income after provision for possible loan losses,
consolidated income before income taxes or in total or per
share amounts of consolidated net income of the Company,
except in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; or
<PAGE>
21
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
amounts set forth in the unaudited financial statements for
the same periods or were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information set forth under the captions "Fleet
Financial Group, Inc.", "Recent Developments" and "Consolidated
Ratios of Earnings to Combined Fixed Charges and Preferred Stock
Dividends" in the Final Prospectus, the information included or
incorporated in Items 1, 6 and 7 of the Company's Annual Report
on Form 10-K incorporated in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement
and the Final Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been
(i) any
<PAGE>
22
change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the judgment
of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been
any decrease in the ratings of any of the Company's debt or equity
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such
rating.
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents (including an opinion of counsel for the Company with
respect to the foreign qualification of specified subsidiaries) as the
Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
(j) Any Deposit Agreement shall have been duly executed by the
Company and the Depositary.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancelation
<PAGE>
23
shall be given to the Company in writing or by telephone or telegraph
confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all out-
of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the
Securities and any related Depositary Shares as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
-------- -------
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the
<PAGE>
24
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities or any related Depositary Shares which are the
subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the
sale of such Securities or Depositary Shares, if any, to such person in any
case where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final Prospectus (or the
Final Prospectus as supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page, under the heading "Underwriting" or "Plan of Distribution" and,
if Schedule I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party
<PAGE>
25
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to appoint counsel satisfactory to such indemnified party to represent the
indemnified party in such action; provided, however, that if the defendants
-------- -------
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to appoint counsel to
defend such action and approval by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party under
this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (plus any local counsel),
approved by the Representatives in the case of paragraph (a) of this
Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 7 is due in accordance with its terms but is for any reason
held by a
<PAGE>
26
court to be unavailable from the Company on grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the
sum of such discount and the purchase price of the Securities specified in
Schedule I hereto and the Company is responsible for the balance; provided,
--------
however, that (y) in no case shall any Underwriter (except as may be
- -------
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person who controls an Underwriter
within the meaning of the Act shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to clauses (y) and (z) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may
be sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
--------------------------
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set
<PAGE>
27
forth opposite their names in Schedule II hereto bears to the aggregate
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
-------- -------
event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination
------------
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York, Rhode Island, Connecticut, Maine, New Hampshire or
Massachusetts state authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of
a national emergency or war or other calamity or crisis the effect of which
on financial markets is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
<PAGE>
28
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing
--------
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 50 Kennedy Plaza,
Providence, Rhode Island 02903, attention of the Senior Vice President and
General Counsel.
12. Successors. This Agreement will inure to the benefit of and
-----------
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
---------------
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and
<PAGE>
29
your acceptance shall represent a binding agreement among the Company and
the several Underwriters.
Very truly yours,
FLEET FINANCIAL
GROUP, INC.
By:
-------------------------------
Title: Vice President - Finance
CONFIRMED AND ACCEPTED
as of the date first above written:
BY:
-------------------------------------
For themselves and as Representatives
of the other Underwriters named in
Schedule II hereto.
EXHIBIT 4(h)
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
BUSINESS CORPORATION
RESTATED ARTICLES OF INCORPORATION
OF
FLEET FINANCIAL GROUP, INC.
(AS AMENDED)
Pursuant to the provisions of Section 7-1.1-59 of the General Laws, 1956,
as amended, the undersigned corporation adopts the following Restated Articles
of Incorporation:
FIRST: The name of the corporation (hereinafter called the Corporation) is
FLEET FINANCIAL GROUP, INC.
SECOND: The period of its duration is perpetual.
THIRD: The nature of the business of the Corporation and the objects or
purposes to be transacted, promoted or carried on by it are as follows:
1. To purchase or otherwise acquire and to hold, pledge, sell, exchange or
otherwise dispose of securities (which term includes any shares of stock, bonds,
debentures, notes, mortgages or other instruments representing rights to
receive, purchase or subscribe for the same or representing any other rights or
interest therein or in any property or assets) created or issued by any person,
firm, association, corporation (including, to the extent permitted by the laws
of the State of Rhode Island, the Corporation) or government or subdivision,
agency or instrumentality thereof; to make payment therefor in any lawful
manner; and to exercise, as owner or holder thereof, any and all rights, powers
and privileges in respect thereof (to the extent aforesaid).
2. To make, manufacture, produce, prepare, process, purchase or otherwise
acquire, and to hold, use, sell, import, export, or otherwise trade or deal in
and with, goods, wares, products, merchandise, machines, machinery, appliances
and apparatus, of every kind, nature and any manufacturing or other business of
any kind or character whatsoever, including, but not by way of limitation,
importing, exporting, mining, quarrying, producing, farming, agriculture,
forestry, construction, management, advisory, mercantile, financial or
investment business, any business engaged in rendering any manner of services
and any business of buying, selling, leasing or dealing in properties of any and
all kinds, whether any such business is located in the United States of America
or any foreign country, and whether or not related to, conducive to, incidental
to, or in any way connected with, the foregoing business.
3. To engage in research, exploration, laboratory and development work
relating to any material, substance, compound or mixture now known or which may
hereafter be known, discovered or developed and to perfect, develop,
manufacture, use, apply and generally to deal in and with any such material,
substance, compound or mixture.
4. To purchase, lease or otherwise acquire, to hold, own, use, develop,
maintain, manage and operate, to sell, transfer, lease, assign, convey,
exchange, or otherwise turn to account or dispose of, and, generally, to deal in
and with, personal and real property, tangible or intangible, of every kind and
description, wheresoever situated, and any and all rights, concessions,
interests and privileges therein.
5. To adopt, apply for, obtain, register, purchase, lease or otherwise
acquire, to maintain, protect, hold, use, own, exercise, develop, manufacture
under, operate and introduce and to sell and grant licenses or other rights in
respect of, assign or otherwise dispose of, turn to account, or in any manner
deal with, and contract with reference to, any trademarks, trade names, patents,
patent rights, concessions, franchises, designs, copyrights and distinctive
marks and rights analogous thereto and inventions, devices, improvements,
processes, recipes, formulae and the like, including, but not by way of
limitation, such thereof as may be
<PAGE>
covered by, used in connection with, or secured or received under, Letters
Patent of the United States of America or elsewhere, and any licenses and rights
in respect thereof, in connection therewith or appertaining thereto.
6. To make, enter into, perform and carry out contracts of every kind and
description with any person, firm, association, corporation or government or
subdivision, agency or instrumentality thereof; to endorse or guarantee the
payment of principal, interest or dividends upon, and to guarantee the
performance of sinking fund or other obligations of, any securities or the
payment of a certain amount per share in liquidation of the capital stock of any
other corporation; and to guarantee in any way permitted by law the performance
of any of the contracts or other undertakings of any person, firm, association,
corporation or government or subdivision, agency or instrumentality thereof.
7. To acquire by purchase, exchange or otherwise, all, or any part of, or
any interest in, the properties, assets, business and good will of any one or
more persons, firms, associations or corporations heretofore or hereafter
engaged in any business whatsoever; to pay for the same in cash, property or its
own or other securities; to hold, operate, lease, reorganize, liquidate, sell or
in any manner dispose of the whole or any part thereof; to assume or guarantee,
in connection therewith, the performance of any liabilities, obligations or
contracts of such persons, firms, associations or corporations; and to conduct
the whole or any part of any business thus acquired.
8. To lend its uninvested funds from time to time to such extent, to such
persons, firms, associations, corporations or governments or subdivisions,
agencies or instrumentalities thereof, and on such terms and on such security,
if any, as the Board of Directors of the Corporation (hereinafter called the
Board of Directors) may determine.
9. To borrow money for any of the purposes of the Corporation, from time
to time, and without limits as to amount; to issue and sell from time to time
its own securities in such amounts, on such terms and conditions, for such
purposes and for such consideration, as may now be or hereafter shall be
permitted by the laws of the State of Rhode Island; and to secure such
securities by mortgage upon, or the pledge of, or the conveyance or assignment
in trust of, the whole or any part of the properties, assets, business and good
will of the Corporation then owned or thereafter acquired.
10. To promote, organize, manage, aid or assist, financially or otherwise,
persons, firms, associations or corporations engaged in any business whatsoever;
and to assume or underwrite the performance of all or any of their obligations.
11. To organize or cause to be organized under the laws of the State of
Rhode Island, any other state or states of the United States of America, the
District of Columbia, any territory, dependency, colony or possession of the
United States of America, or of any foreign country, a corporation or
corporations for the purpose of transacting, promoting or carrying on any or all
objects or purposes for which the Corporation is organized; to dissolve, wind
up, liquidate, merge or consolidate any such corporation or corporations or to
cause the same to be dissolved, wound up, liquidated, merged or consolidated;
and, subject to the laws of the State of Rhode Island, to consolidate or merge
with or into one or more other corporations organized under the laws of the
State of Rhode Island or under the laws of any other state or states in the
United States of America, the District of Columbia, any territory, dependency,
colony or possession of the United States of America or of any foreign country
if the laws under which said other corporation or corporations are formed shall
permit such consolidation or merger.
12. To conduct its business in any and all of its branches and maintain
offices both within and without the State of Rhode Island in any and all states
of the United States of America, in the District of Columbia, in any or all
territories, dependencies, colonies or possessions of the United States of
America and in foreign countries.
13. To such extent as a business corporation organized under the laws of
the State of Rhode Island may now or hereafter lawfully do, to do, either as
principal or agent and either alone or through subsidiaries or in connection
with other persons, firms, associations or corporations, all and everything
necessary, suitable, convenient or proper for, or in connection with, or
incident to, the accomplishment of any of the purposes or
2
<PAGE>
the attainment of any one or more of the objects herein enumerated or designed
directly or indirectly to promote the interests of the Corporation or to enhance
the value of its properties and in general to engage in any lawful act or
activity for which corporations may be organized under the General Laws of Rhode
Island; and to do any and all things and exercise all powers, rights and
privileges which a business corporation may now or hereafter be organized or
authorized to do or to exercise under the laws of the State of Rhode Island.
14. Whenever the context permits, the following provisions shall govern
the construction of the paragraphs of these purposes: no specified enumeration
shall be construed as restricting in any way any general language; any word,
whether in the singular or plural shall be construed to mean both the singular
and the plural; any phrase in the conjunctive or in the disjunctive shall
include both the conjunctive and disjunctive; the mention of the whole shall
include any part or parts; any one or more or all of the purposes set forth may
be pursued from time to time and whenever deemed desirable; verbs in the present
or future tense shall be construed to include both the present and future tenses
or either of them.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 317,500,000, of which 16,000,000
shares of the par value of $1 each are to be of a class designated "Preferred
Stock", 300,000,000 of the par value of $0.01 each are to be of a class
designated "Common Stock" and 1,500,000 shares of the par value of $20 each are
to be of a class designated "Preferred Stock with Cumulative and Adjustable
Dividends, $20 par value." The terms and conditions of the Preferred Stock
with Cumulative and Adjustable Dividends, $20 par value, are attached as
Exhibit A hereto and incorporated by reference in this Article FOURTH as
if set forth in full herein.
The voting powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, of the classes of stock of the Corporation which are fixed
by these Articles of Incorporation, and the authority vested in the Board of
Directors to fix by vote or votes providing for the issue of Preferred Stock,
the voting powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of Preferred Stock which are not fixed by
these Articles of Incorporation, are as follows:
(a) The Preferred Stock may be issued from time to time in one or more
series of any number of shares; provided that the aggregate number of shares
issued and not canceled of any and all such series shall not exceed the total
number of shares of Preferred Stock hereinabove authorized. Each series of
Preferred Stock shall be distinctively designated by letter or descriptive
words. All series of Preferred Stock shall rank equally and be identical in all
respects except as permitted by the provisions of paragraph (b) of this Article
FOURTH.
(b) Authority is hereby vested in the Board of Directors from time to time
to issue the Preferred Stock of any series and in connection with the creation
of each such series to fix by vote or votes providing for the issue of shares
thereof the voting powers, if any, the designation, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of such series to the full extent now or
hereafter permitted by these Articles of Incorporation and the laws of the State
of Rhode Island, in respect of the matters set forth in the following
subparagraphs (1) to (8), inclusive:
(1) The distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased or
decreased (but not below the number of shares thereof then outstanding)
from time to time by action of the Board of Directors;
(2) The dividend rate of such series, any preferences to or provisions
in relation to the dividends payable on any other class or classes or of
any other series of stock, and any limitations, restrictions or conditions
on the payment of dividends;
(3) The price or prices at which, and the terms and conditions on
which, the shares of such series may be redeemed by the Corporation;
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(4) The amount or amounts payable upon the shares of such series in
the event of any liquidation, dissolution or winding up of the Corporation;
(5) Whether or not the shares of such series shall be entitled to the
benefit of a sinking fund to be applied to the purchase or redemption of
shares of such series and, if so entitled, the amount of such fund and the
manner of its application;
(6) Whether or not the shares of such series shall be made convertible
into, or exchangeable for, shares of any other class or classes of stock of
the Corporation or shares of any other series of Preferred Stock, and, if
made so convertible or exchangeable, the conversion price or prices, or the
rate or rates of exchange, and the adjustments thereof, if any, at which
such conversion or exchange may be made, and any other terms and conditions
of such conversion or exchange;
(7) Whether or not the shares of such series shall have any voting
powers and, if voting powers are so granted, the extent of such voting
powers; and
(8) Whether or not the issue of any additional shares of such series
or of any future series in addition to such series shall be subject to
restrictions in addition to the restrictions, if any, on the issue of
additional shares imposed in the vote or votes fixing the terms of any
outstanding series of Preferred Stock theretofore issued pursuant to this
Article FOURTH and, if subject to additional restrictions, the extent of
such additional restrictions.
(c) The holders of Preferred Stock of each series shall be entitled to
receive, when and as declared by the Board of Directors, dividends in cash at
the rate for such series fixed by the Board of Directors as provided in
paragraph (b) of this Article FOURTH, and no more, payable quarterly on the
first days of January, April, July and October or of such other months as may be
designated by the Board of Directors (each of the quarterly periods ending on
the first day of January, April, July and October in each year, or on the first
days of such other months, respectively, being hereinafter called a dividend
period), in each case from the date of cumulation (as defined in paragraph (h)
of this Article FOURTH) of such series. Except as may otherwise be provided in
the vote or votes providing for the issue of any given series of Preferred
Stock, dividends on Preferred Stock shall be cumulative (whether or not there
shall be net profits or net assets of the Corporation legally available for the
payment of such dividends), so that, if at any time full cumulative dividends
(as defined in paragraph (h) of this Article FOURTH) upon the Preferred Stock of
all series to the end of the last completed dividend period shall not have been
paid or declared and a sum sufficient for payment thereof set apart, the amount
of the deficiency shall be fully paid, but without interest, or dividends in
such amount shall have been declared on each such series and a sum sufficient
for the payment thereof shall have been set apart for such payment, before any
sum or sums shall be set aside for or applied to the purchase or redemption of
Preferred Stock of any series (either pursuant to any applicable sinking fund
provisions or any redemptions authorized pursuant to paragraph (g) of this
Article FOURTH or otherwise) or set aside for or applied to the purchase of
Common Stock and before any dividend shall be declared or paid or any other
distribution ordered or made upon the Common Stock (other than a dividend
payable in Common Stock); provided, however, that any moneys deposited in the
sinking fund provided for any series of Preferred Stock in the vote or votes
providing for the issue of shares of said series, in compliance with the
provisions of such sinking fund and of this paragraph (c), may thereafter be
applied to the purchase or redemption of Preferred Stock in accordance with the
terms of such sinking fund, whether or not at the time of such application full
cumulative dividends upon the outstanding Preferred Stock of all series to the
end of the last completed dividend period shall have been paid or declared and
set apart for payment. All dividends declared upon the Preferred Stock of the
respective series outstanding shall be declared pro rata, so that the amounts of
dividends declared per share on the Preferred Stock of different series shall in
all cases bear to each other the same ratio that accrued dividends per share on
the shares of such respective series bear to each other.
(d) Before any sum or sums shall be set aside for or applied to the
purchase of Common Stock and before any dividends shall be declared or paid or
any distribution ordered or made upon the Common Stock (other than a dividend
payable in Common Stock), the Corporation shall comply with the sinking fund
provisions, if any, of any vote or votes providing for the issue of any series
of Preferred Stock any shares of which shall at the time be outstanding.
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(e) Subject to the provisions of paragraphs (c) and (d) of this Article
FOURTH, 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.
(f) In the event of any liquidation, dissolution or winding up of the
Corporation, the holders of Preferred Stock of each series then outstanding
shall be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any payment shall be made to the holders of Common Stock, an amount
determined as provided in paragraph (b) of this Article FOURTH for every share
of their holdings of Preferred Stock of such series. If upon any liquidation,
dissolution or winding up of the Corporation the assets of the Corporation
available for distribution to its stockholders shall be insufficient to pay the
holders of Preferred Stock of all series the full amounts to which they
respectively shall be entitled, the holders of Preferred Stock of all series
shall share ratably in any distribution of assets according to the respective
amounts which would be payable in respect of the shares of Preferred Stock held
by them upon such distribution if all amounts payable on or with respect to
Preferred Stock of all series were paid in full. In the event of any
liquidation, dissolution or winding up of the Corporation, 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 as aforesaid, the
holders of Common Stock shall be entitled, to the exclusion of the holders of
Preferred Stock of any and all series, to share, ratably according to the number
of shares of Common Stock held by them, in all remaining assets of the
Corporation available for distribution to its stockholders. Neither the merger
or consolidation of the Corporation into or with another corporation nor the
merger or consolidation of any other corporation into or with the Corporation,
nor the sale, transfer or lease of all or substantially all the assets of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up of
the Corporation.
(g) Subject to any requirements which may be applicable to the redemption
of any given series of Preferred Stock as provided in any vote or votes
providing for the issue of such series of Preferred Stock, the Preferred Stock
of all series, or of any series thereof, or any part of any series thereof, at
any time outstanding, may be redeemed by the Corporation, at its election
expressed by vote of the Board of Directors, any time or from time to time, upon
not less than 30 days previous notice to the holders of record of Preferred
Stock to be redeemed, given by mail in such manner as may be prescribed by vote
or votes of the Board of Directors,
(1) If such redemption shall be otherwise than by the application of
moneys in any sinking fund referred to in paragraph (d) of this Article
FOURTH, at the redemption price, fixed as provided in paragraph (b) of this
Article FOURTH, at which shares of Preferred Stock of the particular series
may then be redeemed at the option of the Corporation and
(2) If such redemption shall be by the application of moneys in any
sinking fund referred to in paragraph (d) of this Article FOURTH, at the
redemption price, fixed as provided in paragraph (b) of this Article
FOURTH, at which shares of Preferred Stock of the particular series may
then be redeemed for such sinking fund;
provided, however, that, before any Preferred Stock of any series shall be
redeemed at said redemption price thereof specified in clause (1) of this
paragraph (g), all moneys at the time in the sinking fund, if any, for Preferred
Stock of that series shall first be applied, as nearly as may be, to the
purchase or redemption of Preferred Stock of that series as provided in the vote
or votes of the Board of Directors providing for such sinking fund. If less than
all the outstanding shares of Preferred Stock of any series are to be redeemed,
the redemption may be made either by lot or pro rata in such manner as may be
prescribed by vote of the Board of Directors. The Corporation may, if it shall
so elect, provide moneys for the payment of the redemption price by depositing
the amount thereof for the account of the holders of Preferred Stock entitled
thereto with a bank or trust company doing business in the City of New York, in
the State of New York, or in the City of Providence, in the State of Rhode
Island, and having capital and surplus of at least $5,000,000. The date upon
which such deposit may be made by the Corporation (hereinafter called the "date
of deposit") shall be prior to the date fixed as the date of redemption. In any
such case there shall be included in the notice of redemption a statement of the
date of deposit and of the name and address of the bank or trust company with
which the deposit has been or will be made. On and after the date fixed in any
such notice of redemption as
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the date of redemption (unless default shall be made by the Corporation in
providing moneys for the payment of the redemption price pursuant to such
notice) or, if the Corporation shall have made such deposit on or before the
date specified therefor in the notice, then on and after the date of deposit all
rights of the holders of the Preferred Stock to be redeemed as stockholders of
the Corporation, except the right to receive the redemption price as hereinafter
provided, and, in the case of such deposit, any conversion rights not
theretofore expired, shall cease and terminate. Such conversion rights, however,
in any event shall cease and terminate upon the date fixed for redemption or
upon any earlier date fixed by the Board of Directors pursuant to paragraph (b)
of this Article FOURTH for termination of such conversion rights. Anything
herein contained to the contrary notwithstanding, said redemption price shall
include an amount equal to accrued dividends on the Preferred Stock to be
redeemed to the date fixed for the redemption thereof and the Corporation shall
not be required to declare or pay on such Preferred Stock to be redeemed, and
the holders thereof shall not be entitled to receive, any dividends in addition
to those thus included in the redemption price, provided, however, that the
Corporation may pay in regular course any dividends thus included in the
redemption price either to the holders of record on the record date fixed for
the determination of stockholders entitled to receive such dividends (in which
event, anything herein to the contrary notwithstanding, the amount so deposited
need not include any dividends so paid or to be paid) or as part of the
redemption price upon surrender of the certificates for the shares redeemed. At
any time on or after the date fixed as aforesaid for such redemption or, if the
Corporation shall elect to deposit the money for such redemption as herein
provided, then at any time on or after the date of deposit and without awaiting
the date fixed as aforesaid for such redemption, the respective holders of
record of the Preferred Stock to be redeemed shall be entitled to receive the
redemption price upon actual delivery to the Corporation, or, in the event of
such deposit, to the bank or trust company with which such deposit shall be
made, of certificates for the shares to be redeemed, such certificates, if
required, to be properly stamped for transfer and duly endorsed in blank or
accompanied by proper instruments of assignment and transfer thereof duly
executed in blank. Any moneys so deposited which shall remain unclaimed by the
holders of such Preferred Stock at the end of five years after the redemption
date shall be paid by such bank or trust company to the Corporation and any
interest accrued on moneys so deposited shall belong to the Corporation and
shall be paid to it from time to time. Preferred Stock redeemed pursuant to the
provisions of this paragraph (g) shall be canceled and shall thereafter have the
status of authorized and unissued shares of Preferred Stock.
(h) The term "date of cumulation" as used with reference to any series of
Preferred Stock shall be deemed to mean the date fixed by the Board of Directors
as the date of cumulation of such series at the time of creation thereof or, if
no date shall have been fixed, the date on which shares of such series are first
issued. Whenever used with reference to any share of any series of Preferred
Stock, the term "full cumulative dividends" shall be deemed to mean (whether or
not in any dividend period, or any part thereof, in respect of which such term
is used there shall have been net profits or net assets of the Corporation
legally available for the payment of such dividends) that amount which shall be
equal to dividends at the full rate fixed for such series as provided in
paragraph (b) of this Article FOURTH for the period of time elapsed from the
date of cumulation of such series to the date as of which full cumulative
dividends are to be computed (including an amount equal to the dividend at such
rate for any fraction of a dividend period included in such period of time); and
the term "accrued dividends" shall be deemed to mean full cumulative dividends
to the date as of which accrued dividends are to be computed, less the amount of
all dividends paid, or deemed paid as hereinafter in this paragraph (h)
provided, upon said share. In the event of the issue of additional shares of
Preferred Stock of any series after the original issue of shares of Preferred
Stock of such series, all dividends paid or accrued on Preferred Stock of such
series prior to the date of issue of such additional Preferred Stock shall be
deemed to have been paid on the additional Preferred Stock so issued.
(i) No holder of stock of any class of the Corporation, whether now or
hereafter authorized, shall have any preemptive, preferential or other rights to
subscribe for or purchase or acquire any shares of any class or any other
securities of the Corporation, whether now or hereafter authorized, and whether
or not convertible into, or evidencing or carrying the right to purchase, shares
of any class or any other securities now or hereafter authorized, and whether
the same shall be issued for cash, services or property, or by way of dividend
or otherwise.
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(j) Subject to the provisions of these Articles of Incorporation and except
as otherwise provided by law, the shares of stock of the Corporation, regardless
of class, may be issued for such consideration and for such corporate purposes
as the Board of Directors may from time to time determine.
(k) Except as otherwise provided by law, or these Articles of
Incorporation, or by the vote or votes providing for the issue of any series of
Preferred Stock, the holders of shares of Preferred Stock as such holders, shall
not have any right to vote, and are hereby specifically excluded from the right
to vote, in the election of directors or for any other purpose. Except as
aforesaid, the holders of Preferred Stock, as such holders, shall not be
entitled to notice of any meeting of stockholders.
(l) Subject to the provisions of any applicable law, or of the Bylaws of
the Corporation as from time to time amended, with respect to the closing of the
transfer books or the fixing of a record date for the determination of
stockholders entitled to vote and except as otherwise provided by law or by
these Articles of Incorporation, or by the vote or votes 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 other 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 Corporation.
(As of the date of these Restated Articles of Incorporation, the following
series of Preferred Stock have been authorized by the Board of Directors of
the Corporation: (i) Preferred Stock with Cumulative and Adjustable Dividends,
the terms and provisions of which are set forth in Exhibit B hereto, (ii)
Series I 12% Cumulative Convertible Preferred Stock, the terms and provisions
of which are set forth in Exhibit C hereto, (iii) Series II 6 1/2% Cumulative
Convertible Preferred Stock, the terms and provisions of which are set forth
in Exhibit D hereto, (iv) Series III 10.12% Perpetual Preferred Stock, the terms
and provisions of which are set forth in Exhibit E hereto, (v) Series
IV 9.375% Perpetual Preferred Stock, the terms and provisions of which are set
forth in Exhibit F hereto, (vi) Dual Convertible Preferred Stock, the terms
and provisions of which are set forth in Exhibit G hereto and (vii) Cumulative
Participating Junior Preferred Stock, the terms and provisions of which are
set forth in Exhibit H hereto, said Exhibits B through H being hereby
incorporated by reference in this Article FOURTH as if set forth in full
herein. As of the date of these Restated Articles of Incorporation, there
were issued and outstanding (i) 1,000,000 shares of the Preferred Stock with
Cumulative and Adjustable Dividends, (ii) 2,263 shares of Series I 12%
Cumulative Convertible Preferred Stock, (iii) 30,000 shares of Series II
6 1/2% Cumulative Convertible Preferred Stock, (iv) 1,050,000 shares of
Series III 10.12% Perpetual Preferred Stock, (v) 1,000,000 shares of
Series IV 9.375% Perpetual Preferred Stock, (vi) 1,415,000 shares of Dual
Convertible Preferred Stock and (vii) no shares of Cumulative Participating
Junior Preferred Stock).
FIFTH: The private property of the stockholders of the Corporation shall
not be subject to the payment of corporate debts to any extent whatsoever.
SIXTH: Whenever the vote of stockholders at a meeting thereof is required
or permitted to be taken for or in connection with any corporate action, the
meeting and vote of stockholders may be dispensed with and such action may be
taken with the written consent of stockholders having not less than the minimum
percentage of the total vote required by statute for the proposed corporate
action, and provided that prompt notice of such action be given to all
stockholders who would have been entitled to vote upon the action if such
meeting were held.
SEVENTH: (a) Directors of the Corporation need not be stockholders, but no
person shall be elected a Director who has attained the age of 72 and no person
shall continue to serve as Director after the date of the first meeting of the
stockholders of the Corporation held on or after the date on which such person
attained the age of 72.
The powers and authorities herein conferred upon the Board of Directors are
in furtherance and not in limitation of those conferred by the laws of the State
of Rhode Island. In addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Rhode
Island, of these Articles of Incorporation and of the Bylaws of the Corporation.
(b) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. The number of directors of the
Corporation (exclusive of directors to be elected by the holders of any one or
more series of the Preferred Stock voting separately as a class or classes) that
shall constitute the Board of Directors shall be 13, unless otherwise determined
from time to time by resolution adopted by the affirmative vote of:
(1) At least 80% of the Board of Directors, and
(2) A majority of the Continuing Directors.
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(c) Subject to applicable law, the Directors shall be divided into three
(3) classes, each class to be as nearly equal in number as possible. The term of
office of Directors of the first class shall expire at the annual meeting of
stockholders to be held in 1984 and until their respective successors are duly
elected and qualified. The term of office of Directors of the second class shall
expire at the annual meeting of stockholders to be held in 1985 and until their
respective successors are duly elected and qualified. The term of office of
Directors of the third class shall expire at the annual meeting of stockholders
to be held in 1986 and until their respective successors are duly elected and
qualified. Subject to the foregoing, at each annual meeting of stockholders,
commencing at the annual meeting to be held in 1984, the successors to the class
of directors whose term shall then expire shall be elected to hold office for a
term expiring at the third succeeding annual meeting and until their successors
shall be duly elected and qualified. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any increase in
the number of directors, may be filled only by the Board of Directors, acting by
vote of 80% of the directors then in office, although less than a quorum, and
any directors so chosen shall hold office until the next election of the class
for which such directors shall have been chosen and until their respective
successors shall be duly elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director. Notwithstanding the
foregoing, and except as otherwise required by law, whenever the holders of any
one or more series of Preferred Stock shall have the right, voting separately as
a class, to elect one or more directors of the Corporation, (i) the terms of the
director or directors elected by such holders shall expire at the next
succeeding annual meeting of stockholders and vacancies created with respect to
any directorship of the directors so elected may be filled in the manner
specified by such Preferred Stock, and (ii) this Article SEVENTH shall be deemed
to be construed and/or modified so as to permit the full implementation of the
terms and conditions relating to election of directors of any series of
Preferred Stock that has been or will be designated by the Board of Directors.
(d) Notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the Corporation), any one or more directors of the Corporation may be
removed at any time, but only for cause and only by either (1) the affirmative
vote of a majority of the Continuing Directors and a majority of the Board of
Directors or (2) the affirmative vote, at a meeting of the stockholders called
for that purpose, as to all stock held by the holders of 80% or more of the
outstanding Voting Shares, voting separately as a class.
Notwithstanding the foregoing, and except as otherwise required by law,
whenever the holders of any one or more series of Preferred Stock shall have the
right, voting separately as a class, to elect one or more directors of the
Corporation, the provisions of this Section (d) shall not apply with respect to
the director or directors elected by such holders of Preferred Stock.
(e) For purposes of this Article SEVENTH, the following definitions shall
apply:
(1) Affiliate. An "Affiliate" of, or a Person "affiliated with", a
specified Person, means a Person that directly or indirectly, through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
(2) Associate. The term "Associate" used to indicate a relationship
with any Person means:
(A) Any corporation or organization (other than the Corporation or
a Subsidiary of the Corporation) of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten
percent or more of any class of equity securities;
(B) Any trust or other estate in which such Person has a ten
percent or greater beneficial interest or as to which such Person serves
as trustee or in a similar fiduciary capacity;
(C) Any relative or spouse of such Person, or any relative of such
spouse, who has the same home as such Person; or
(D) Any investment company registered under the Investment Company
Act of 1940 for which such Person or any Affiliate or Associate of such
Person serves as investment adviser.
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(3) Beneficial Owner. A Person shall be considered the "Beneficial
Owner" of any shares of stock (whether or not owned of record):
(A) With respect to which such Person or any Affiliate or Associate
of such Person directly or indirectly has or shares (i) voting power,
including the power to vote or to direct the voting of such shares of
stock, and/or (ii) investment power, including the power to dispose of
or to direct the disposition of such shares of stock;
(B) Which such Person or any Affiliate or Associate of such Person
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
and/or (ii) the right to vote pursuant to any agreement, arrangement or
understanding (whether such right is exercisable immediately or only
after the passage of time); or
(C) Which are Beneficially Owned within the meaning of (A) or (B)
of this Section (3) by any other Person with which such first mentioned
Person or any of its Affiliates or Associates has any agreement,
arrangement or understanding, written or oral, with respect to
acquiring, holding, voting or disposing of any shares of stock of the
Corporation or any Subsidiary of the Corporation or acquiring, holding
or disposing of all or substantially all, or any Substantial Part, of
the assets or business of the Corporation or a Subsidiary of the
Corporation.
For the purpose only of determining whether a Person is the Beneficial
Owner of a percentage specified in this Article SEVENTH of the outstanding
Voting Shares, such shares shall be deemed to include any Voting Shares which
may be issuable pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants, options or
otherwise and which are deemed to be beneficially owned by only such Person
pursuant to the foregoing provisions of this Section (3).
(4) Business Combination. A "Business Combination" means:
(A) The sale, exchange, lease, transfer or other disposition to or
with a Related Person or any Affiliate or Associate of such Related
Person by the Corporation or any of its Subsidiaries (in a single
transaction or a series of related transactions) of all or substantially
all, or any Substantial Part, of its or their assets or businesses
(including, without limitation, any securities issued by a Subsidiary);
(B) The purchase, exchange, lease or other acquisition by the
Corporation or any of its Subsidiaries (in a single transaction or a
series of related transactions) of all or substantially all, or any
Substantial Part, of the assets or business of a Related Person or any
Affiliate or Associate of such Related Person;
(C) Any merger or consolidation of the Corporation or any
Subsidiary thereof into or with a Related Person or any Affiliate or
Associate of such Related Person, irrespective of which Person is the
surviving entity in such merger or consolidation;
(D) Any reclassification of securities, recapitalization or other
transaction (other than a redemption in accordance with the terms of the
security redeemed) which has the effect, directly or indirectly, of
increasing the proportionate amount of Voting Shares of the Corporation
or any Subsidiary thereof which are Beneficially Owned by a Related
Person, or any partial or complete liquidation, spinoff, split off or
split up of the Corporation or any Subsidiary thereof; provided however,
that this Section (4)(D) shall not relate to any transaction of the
types specified herein that has been approved by (i) a majority of the
Board of Directors, and (ii) 80% of the Continuing Directors; or
(E) The acquisition upon the issuance thereof of Beneficial
Ownership by a Related Person of Voting Shares or securities convertible
into Voting Shares or any voting securities or securities convertible
into voting securities of any Subsidiary of the Corporation, or the
acquisition upon the issuance thereof of Beneficial Ownership by a
Related Person of any rights, warrants or options to
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acquire any of the foregoing or any combination of the foregoing Voting
Shares or voting securities of a Subsidiary of the Corporation.
As used in this definition, a "series of related transactions" shall be
deemed to include not only a series of transactions with the same Related Person
but also a series of separate transactions with a Related Person or any
Affiliate or Associate of such Related Person.
Anything in this definition to the contrary notwithstanding, this
definition shall not be deemed to include any transaction of the type set forth
in Sections (4)(A) through (4)(C) above between or among any two or more
Subsidiaries of the Corporation or the Corporation and one or more Subsidiaries
of the Corporation if such transaction has been approved by the affirmative vote
of at least 80% of the Board of Directors and a majority of the Continuing
Directors on or prior to the Date of Determination.
(5) Continuing Director. A "Continuing Director" shall mean:
(A) An individual who was a member of the Board of Directors of the
Corporation first elected by the stockholders or by the Board of
Directors prior to April 13, 1983 or prior to the time that a Related
Person became the Beneficial Owner of in excess of 10% of the Voting
Shares of the Corporation entitled to vote in the election of directors;
or
(B) An individual designated (before such individual's initial
election as a director) as a Continuing Director by a majority of the
then Continuing Directors.
(6) Date of Determination. The term "Date of Determination" means:
(A) The date on which a binding agreement (except for the
fulfillment of conditions precedent, including, without limitation,
votes of stockholders to approve such transaction) is entered into by
the Corporation, as authorized by its Board of Directors, and another
Person providing for any Business Combination; or
(B) If such an agreement as referred to in Section (6)(A) above is
amended so as to make it less favorable to the Corporation and its
stockholders, the date on which such amendment is approved by the Board
of Directors of the Corporation; or
(C) In cases where neither Section (6)(A) or (6)(B) above shall be
applicable, the record date for the determination of stockholders of the
Corporation entitled to notice of and to vote upon the transaction in
question. A majority of the Continuing Directors shall have the power
and duty to determine the Date of Determination as to any transaction
under this Article SEVENTH. Any such determination shall be conclusive
and binding for all purposes of this Article.
(7) Person. The term "Person" shall mean any individual, partnership,
corporation, group or other entity (other than the Corporation, any
Subsidiary of the Corporation for itself or as a fiduciary for customers in
the ordinary course, or a trustee holding stock for the benefit of
employees of the Corporation or its Subsidiaries, or any one of them,
pursuant to one or more employee benefit plans or arrangements). When two
or more Persons act as a partnership, limited partnership, syndicate,
association or other group for the purpose of acquiring, holding or
disposing of shares of stock, such partnership, syndicate, association or
group shall be deemed a "Person".
(8) Related Person. "Related Person" means any Person which is the
Beneficial Owner, as of the Date of Determination or immediately prior to
the consummation of a Business Combination, or both, of 10% or more of the
Voting Shares, or any Person who is an Affiliate of the Corporation and at
any time within five years preceding the Date of Determination was the
Beneficial Owner of 10% or more of the then outstanding Voting Shares, but
does not include any one group of more than one Continuing Director.
(9) Substantial Part. The term "Substantial Part" as used with
reference to the assets of the Corporation, of any Subsidiary or of any
Related Person means assets having a value of more than five percent of the
total consolidated assets of the Corporation and its Subsidiaries as of the
end of the Corporation's most recent fiscal year ending prior to the time
the determination is being made.
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(10) Subsidiary. "Subsidiary" shall mean any corporation or entity of
which the Person in question owns not less than 50% of any class of equity
securities, directly or indirectly.
(11) Voting Shares. "Voting Shares" shall mean shares of the
Corporation's capital stock entitled to vote generally in the election of
directors.
(12) Certain Determinations With Respect to Article SEVENTH. (A) A
majority of the Continuing Directors shall have the conclusive power and
authority to determine, for the purposes of this Article SEVENTH, on the
basis of information known to them: (i) the number of Voting Shares of
which any Person is the Beneficial Owner, (ii) whether a Person is an
Affiliate or Associate of another, (iii) whether a Person has an agreement,
arrangement or understanding with another as to the matters referred to in
the definition of "Beneficial Owner" as hereinabove defined, (iv) whether
the assets subject to any Business Combination constitute a "Substantial
Part" as hereinabove defined, (v) whether two or more transactions
constitute a "series of related transactions" as hereinabove defined, (vi)
any matters referred to in subsection (12)(B) below, and (vii) such other
matters with respect to which a determination is required under this
Article SEVENTH. Any such determination shall be final and binding for all
purposes hereunder.
(B) A Related Person shall be deemed to have acquired a Voting Share
of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to Voting Shares owned by
Affiliates, Associates or other Persons whose ownership is attributed to a
Related Person under the foregoing definition of Beneficial Owner, if the
price paid by such Related Person for such shares is not determinable, the
price so paid shall be deemed to be the higher of (i) the price paid upon
acquisition thereof by the Affiliate, Associate or other Person or (ii) the
market price of the shares in question (as determined by a majority of the
Continuing Directors) at the time when the Related Person became the
Beneficial Owner thereof.
(f) Notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the Corporation), and in addition to such additional vote of the
Preferred Stock as may be required by the provisions of any series thereof or by
applicable law, this Article SEVENTH shall not be amended, altered, changed or
repealed without:
(1) The affirmative vote of 80% of the Board of Directors and of a
majority of Continuing Directors, and
(2) The affirmative vote as to all stock held by the holders of 80% or
more of the outstanding Voting Shares, voting separately as a class.
EIGHTH: (a) The Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in these Articles
of Incorporation, and other provisions authorized by the laws of the State of
Rhode Island at the time in force may be added or inserted in these Articles of
Incorporation, in the manner (i) now or hereafter prescribed by law, and (ii) as
has otherwise been provided in Articles SEVENTH and NINTH of these Articles of
Incorporation; and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to these Articles of Incorporation in their present form or as
hereafter amended are granted subject to the right reserved in this Article
EIGHTH.
(b) Notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the Corporation), and in addition to such additional vote of the
Preferred Stock as may be required by the provisions of any series thereof or by
applicable law, this Article EIGHTH shall not be amended, altered, changed or
repealed without the affirmative vote as to all stock held by the holders of 80%
or more of the outstanding shares of the Corporation's capital stock entitled to
vote generally in the election of directors, voting separately as class.
NINTH: (a) Definitions and Related Matters as to Certain Business
Combinations.
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1.1 Affiliate. An "Affiliate" of, or a Person "affiliated with", a
specified Person, means a Person that directly or indirectly, through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
1.2 Associate. The term "Associate" used to indicate a relationship with
any Person means:
(1) Any corporation or organization (other than the Corporation or a
Subsidiary of the Corporation) of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten percent
or more of any class of equity securities;
(2) Any trust or other estate in which such Person has a ten percent
or greater beneficial interest or as to which such Person serves as trustee
or in a similar fiduciary capacity;
(3) Any relative or spouse of such Person, or any relative of such
spouse, who has the same home as such Person; or
(4) Any investment company registered under the Investment Company Act
of 1940 for which such Person or any Affiliate or Associate of such Person
serves as investment adviser.
1.3 Beneficial Owner. A Person shall be considered the "Beneficial Owner"
of any shares of stock (whether or not owned of record):
(1) With respect to which such Person or any Affiliate or Associate of
such Person directly or indirectly has or shares (i) voting power,
including the power to vote or to direct the voting of such shares of
stock, and/or (ii) investment power, including the power to dispose of or
to direct the disposition of such shares of stock;
(2) Which such Person or any Affiliate or Associate of such Person has
(i) the right to acquire (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, and/or (ii) the right to vote pursuant
to any agreement, arrangement or understanding (whether such right is
exercisable immediately or only after the passage of time); or
(3) Which are Beneficially Owned within the meaning of (1) or (2) of
this Section 1.3 by any other Person with which such first-mentioned Person
or any of its Affiliates or Associates has any agreement, arrangement or
understanding, written or oral, with respect to acquiring, holding, voting
or disposing of any shares of stock of the Corporation or any Subsidiary of
the Corporation or acquiring, holding or disposing of all or substantially
all, or any Substantial Part, of the assets or business of the Corporation
or a Subsidiary of the Corporation.
For the purpose only of determining whether a Person is the Beneficial
Owner of a percentage specified in this Article NINTH of the outstanding Voting
Shares, such shares shall be deemed to include any Voting Shares which may be
issuable pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants, options or otherwise
and which are deemed to be beneficially owned by only such Person pursuant to
the foregoing provisions of this Section 1.3.
1.4 Business Combination. A "Business Combination" means:
(1) The sale, exchange, lease, transfer or other disposition to or
with a Related Person or any Affiliate or Associate of such Related Person
by the Corporation or any of its Subsidiaries (in a single transaction or a
series of related transactions) of all or substantially all, or any
Substantial Part, of its or their assets or business (including, without
limitation, any securities issued by a Subsidiary);
(2) The purchase, exchange, lease or other acquisition by the
Corporation or any of its Subsidiaries (in a single transaction or a series
of related transactions) of all, or any Substantial Part, of the assets or
business of a Related Person or any Affiliate or Associate of such Related
Person;
(3) Any merger or consolidation of the Corporation or any Subsidiary
thereof into or with a Related Person or any Affiliate or Associate of such
Related Person, irrespective of which Person is the surviving entity in
such merger or consolidation;
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(4) Any reclassification of securities, recapitalization or other
transaction (other than a redemption in accordance with the terms of the
security redeemed) which has the effect, directly or indirectly, of
increasing the proportionate amount of Voting Shares of the Corporation or
any Subsidiary thereof which are Beneficially Owned by a Related Person, or
any partial or complete liquidation, spin-off, split-off or split-up of the
Corporation or any Subsidiary thereof; provided, however, that this Section
1.4(4) shall not relate to any transaction of the types specified herein
that has been approved by (i) a majority of the Board of Directors and (ii)
80% of the Continuing Directors; or
(5) The acquisition upon the issuance thereof of Beneficial Ownership
by a Related Person of Voting Shares or securities convertible into Voting
Shares or any voting securities or securities convertible into voting
securities of any Subsidiary of the Corporation, or the acquisition upon
the issuance thereof of Beneficial Ownership by a Related Person of any
rights, warrants or options to acquire any of the foregoing or any
combination of the foregoing Voting Shares or voting securities of a
Subsidiary of the Corporation.
As used in this definition, a "series of related transactions" shall
be deemed to include not only a series of transactions with the same
Related Person but also a series of separate transactions with a Related
Person or any Affiliate or Associate of such Related Person.
Anything in this definition to the contrary notwithstanding, this
definition shall not be deemed to include any transaction of the type set
forth in Section 1.4(1) through 1.4(3) above between or among any two or
more Subsidiaries of the Corporation or the Corporation and one or more
Subsidiaries of the Corporation if such transaction has been approved by
the affirmative vote of at least 80% of the Board of Directors and a
majority of the Continuing Directors on or prior to the Date of
Determination.
1.5 Continuing Director. A "Continuing Director" shall mean:
(1) An individual who was a member of the Board of Directors of the
Corporation first elected by the stockholders or by the Board of Directors
prior to April 13, 1983 or prior to the time that a Related Person became
the Beneficial Owner of in excess of 10% of the Voting Shares of the
Corporation entitled to vote in the election of directors; or
(2) An individual designated (before such individual's initial
election as a director) as a Continuing Director by a majority of the then
Continuing Directors.
1.6 Date of Determination. The term "Date of Determination" means:
(1) The date on which a binding agreement (except for the fulfillment
of conditions precedent, including, without limitation, votes of
stockholders to approve such transaction) is entered into by the
Corporation, as authorized by its Board of Directors, and another Person
providing for any Business Combination; or
(2) If such an agreement as referred to in Section 1.6(1) above is
amended so as to make it less favorable to the Corporation and its
stockholders, the date on which such amendment is approved by the Board of
Directors of the Corporation; or
(3) In cases where neither Section 1.6(1) or (2) above shall be
applicable, the record date for the determination of stockholders of the
Corporation entitled to notice of and to vote upon the transaction in
question.
A majority of the Continuing Directors shall have the power and duty to
determine the Date of Determination as to any transaction under this Article
NINTH. Any such determination shall be conclusive and binding for all purposes
of this Article.
1.7 Person. The term "Person" shall mean any individual, partnership,
corporation, group or other entity (other than the Corporation, any Subsidiary
of the Corporation for itself or as a fiduciary for customers in the ordinary
course, or a trustee holding stock for the benefit of employees of the
Corporation or its Subsidiaries, or any one of them, pursuant to one or more
employee benefit plans or arrangements). When two or more Persons act as a
partnership, limited partnership, syndicate, association or other group for the
purpose of
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acquiring, holding or disposing of shares of stock, such partnership, syndicate,
association or group shall be deemed a "Person".
1.8 Related Person. "Related Person" means any Person which is the
Beneficial Owner, as of the Date of Determination or immediately prior to the
consummation of a Business Combination or both, of 10% or more of the Voting
Shares, or any Person who is an Affiliate of the Corporation and at any time
within five years preceding the Date of Determination was the Beneficial Owner
of 10% or more of the then outstanding Voting Shares, but does not include any
one or group of more than one Continuing Director.
1.9 Substantial Part. The term "Substantial Part" as used with reference to
the assets of the Corporation, of any Subsidiary or of any Related Person means
assets having a value of more than five percent of the total consolidated assets
of the Corporation and its Subsidiaries as of the end of the Corporation's most
recent fiscal year ending prior to the time the determination is being made.
1.10 Subsidiary. "Subsidiary" shall mean any corporation or entity of which
the Person in question owns not less than 50% of any class of equity securities,
directly or indirectly.
1.11 Voting Shares. "Voting Shares" shall mean shares of the Corporation's
capital stock entitled to vote generally in the election of directors.
1.12 Certain Determinations With Respect to Article NINTH.
(1) A majority of the Continuing Directors shall have the conclusive
power and authority to determine, for the purposes of this Article NINTH,
on the basis of information known to them: (i) the number of Voting Shares
of which any Person is the Beneficial Owner, (ii) whether a Person is an
Affiliate or Associate of another, (iii) whether a Person has an agreement,
arrangement or understanding with another as to the matters referred to in
the definition of "Beneficial Owner" as hereinabove defined, (iv) whether
the assets subject to any Business Combination constitute a "Substantial
Part" as hereinabove defined, (v) whether two or more transactions
constitute a "series of related transactions" as hereinabove defined, (vi)
any matters referred to in subsection 1.12(2) below, and (vii) such other
matters with respect to which a determination is required under this
Article NINTH. Any such determination shall be final and binding for all
purposes hereunder.
(2) A Related Person shall be deemed to have acquired a Voting Share
of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to Voting Shares owned by
Affiliates, Associates or other Persons whose ownership is attributed to a
Related Person under the foregoing definition of Beneficial Owner, if the
price paid by such Related Person for such shares is not determinable, the
price so paid shall be deemed to be the higher of (i) the price paid upon
acquisition thereof by the Affiliate, Associate or other Person or (ii) the
market price of the shares in question (as determined by a majority of the
Continuing Directors) at the time when the Related Person became the
Beneficial Owner thereof.
(b) Approval of Certain Business Combinations.
Whether or not a vote of the stockholders is otherwise required in
connection with the transaction, neither the Corporation nor any of its
Subsidiaries shall become a party to any Business Combination without prior
compliance with the provisions of Section 1.1 or 1.2 or 1.3 hereinbelow, in
addition to such additional vote of the Preferred Stock as may be required by
the provisions of any series thereof or by applicable law.
1.1 Prior Approval by the Board of Directors. Such Business Combination was
approved by the Board of Directors of the Corporation by the affirmative vote of
at least 80% of the Board of Directors of the Corporation either (a) at a time
prior to the acquisition of 10% or more of the outstanding Voting Shares of the
Corporation by the Related Person, or (b) after such acquisition, but only so
long as such Related Person sought and obtained the approval, by the affirmative
vote of at least 80% of the Board of Directors of the Corporation, of the
acquisition of 10% or more of the outstanding Voting Shares prior to such
acquisition being consummated.
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1.2 Approval by Continuing Directors and Additional Requirements.
Such Business Combination (a) shall be approved at a meeting of the Board
of Directors by the affirmative vote of 80% of the Continuing Directors and a
majority of the Board of Directors, and (b) all of the conditions hereinafter
set forth in subsections (1) through (5) shall be satisfied:
(1) The ratio of (i) the aggregate amount of the cash and the fair
market value of other consideration to be received per share of Common
Stock in such Business Combination by holders of Common Stock other than
the Related Person involved in such Business Combination, to (ii) the
market price per share of the Common Stock immediately prior to the
announcement of the proposed Business Combination, is at least as great as
the ratio of (x) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) which such
Related Person has theretofore paid in acquiring any Common Stock prior to
such Business Combination, to (y) the market price per share of Common
Stock immediately prior to the initial acquisition by such Related Person
of any shares of Common Stock; and
(2) The aggregate amount of the cash and the fair market value of
other consideration to be received per share of Common Stock in such
Business Combination by holders of Common Stock, other than the Related
Person involved in such Business Combination, (i) is not less than the
highest per share price (including brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by such Related Person in acquiring any
of its holdings of Common Stock, (ii) is not less than the earnings per
share of Common Stock for the four consecutive fiscal quarters of the
Corporation immediately preceding the Date of Determination of such
Business Combination multiplied by the then price/earnings multiple (if
any) of such Related Person as customarily computed and reported in the
financial community; provided, that for the purposes of this clause (ii),
if more than one Person constitutes the Related Person involved in the
Business Combination, the price/earnings multiple (if any) of the Person
having the highest price/earnings multiple shall be used for the
computation in this clause (ii), and (iii) is not less than the book value
of a share of the Common Stock, as reflected in the balance sheet of the
Corporation as of the last day of the last fiscal quarter of the
Corporation preceding the Date of Determination; and
(3) The consideration (if any) to be received in such Business
Combination by holders of Common Stock other than the Related Person
involved shall, except to the extent that a stockholder agrees otherwise as
to all or part of the shares which he or she owns, be in the same form and
of the same kind as the consideration paid by the Related Person in
acquiring Common Stock already owned by it; and
(4) After such Related Person became a Related Person and prior to the
consummation of such Business Combination: (i) such Related Person shall
have taken steps to ensure that the Board of Directors of the Corporation
included at all times representation by Continuing Directors proportionate
to the ratio that the number of Voting Shares of the Corporation from time
to time owned by stockholders who are not Related Persons bears to all
Voting Shares of the Corporation outstanding at the time in question (with
a Continuing Director to occupy any resulting fractional position among the
directors); (ii) such Related Person shall not have acquired from the
Corporation, directly or indirectly, any shares of the Corporation (except
(x) upon conversion of convertible securities acquired by it prior to
becoming a Related Person or (y) as a result of a pro rata stock dividend,
stock split or division of shares or (z) in a transaction consummated after
this Article NINTH was added to these Articles of Incorporation and which
satisfied all applicable requirements of this Article NINTH); (iii) such
Related Person shall not have acquired any additional Voting Shares of the
Corporation or securities convertible into or exchangeable for Voting
Shares except as a part of the transaction which resulted in such Related
Person's becoming a Related Person; and (iv) such Related Person shall not
have (x) received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances, guarantees,
pledges or other financial assistance or tax credits provided by the
Corporation or any Subsidiary, or (y) made any major change in the
Corporation's business or equity capital structure or entered into any
contract, arrangement or understanding with the Corporation except any such
change, contract, arrangement or understanding as may have been approved by
the favorable vote of not less than 80% of the Continuing Directors and a
majority of the Board of Directors of the Corporation; and
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(5) A proxy statement complying with the requirements of the
Securities Exchange Act of 1934 shall have been mailed to all holders of
Voting Shares for the purpose of soliciting stockholder approval of such
Business Combination. Such proxy statement shall contain at the front
thereof, in a prominent place, any recommendations as to the advisability
(or inadvisability) of the Business Combination which the Continuing
Directors, or any of them, may have furnished in writing and, if deemed
advisable by two thirds of the Continuing Directors, an opinion of a
reputable investment banking firm as to the fairness (or lack of fairness)
of the terms of such Business Combination from the point of view of the
holders of Voting Shares other than any Related Person (such investment
banking firm to be selected by two thirds of the Continuing Directors, to
be furnished with all information it reasonably requests, and to be paid by
the Corporation a reasonable fee for its services upon receipt by the
Corporation of such opinion).
For purposes of Sections 1.1 (1) and (2) hereof, in the event of a
Business Combination upon consummation of which the Corporation would be
the surviving corporation or company or would continue to exist (unless it
is provided, contemplated or intended that as part of such Business
Combination or within one year after consummation thereof a plan of
liquidation or dissolution of the Corporation will be effected), the term
"other consideration to be received" shall include (without limitation)
Common Stock retained by stockholders of the Corporation other than Related
Persons who are parties to such Business Combination.
1.3 Approval by Stockholders. If there is not full compliance with the
provisions of Section 1.1 or 1.2 of paragraph (b) of this Article, such Business
Combination shall be approved by the affirmative vote of 80% of the Voting
Shares, voting as a single class; provided that a proxy statement complying with
the requirements of the Securities Exchange Act of 1934 shall have been mailed
to all holders of Voting Shares for the purpose of soliciting stockholder
approval of such Business Combination. Such proxy statement shall contain at the
front thereof, in a prominent place, any recommendations as to the advisability
(or inadvisability) of the Business Combination which the Continuing Directors,
or any of them, may have furnished in writing and, if deemed advisable by two
thirds of the Continuing Directors, an opinion of a reputable investment banking
firm as to the fairness (or lack of fairness) of the terms of such Business
Combination from the point of view of the holders of Voting Shares other than
any Related Person (such investment banking firm to be selected by two thirds of
the Continuing Directors, to be furnished with all information it reasonably
requests, and to be paid a reasonable fee by the Corporation for its services
upon receipt by the Corporation of such opinion).
(c) Amendments to this Article NINTH.
Notwithstanding any other provisions of these Articles of Incorporation or
the Bylaws of the Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the Corporation), and in addition to such additional vote of the
Preferred Stock as may be required by the provisions of any series thereof or by
applicable law, this Article NINTH shall not be amended, altered, changed or
repealed without:
(1) The affirmative vote of 80% of the Board of Directors and a
majority of the Continuing Directors, and
(2) The affirmative vote as to all stock held by the holders of 80% or
more of the outstanding Voting Shares, voting separately as a class.
(d) Amendments Recommended by Directors.
The provisions of paragraph (c) of this Article NINTH shall not apply to,
and the vote referred to therein shall not be required for, any amendment,
addition, alteration or repeal of any provision of this Article NINTH that is
recommended to the stockholders by the favorable vote of (1) a majority of the
Board of Directors, and (2) not less than 80% of the Continuing Directors, and
any such amendment, addition, alteration or repeal so recommended shall require
only the vote, if any, required under the applicable provisions of the Rhode
Island Business Corporation Law.
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TENTH: (a) No director of the Corporation shall be liable to the
Corporation or to its stockholders for monetary damages for breach of the
director's duty as a director; provided, however, that this Article TENTH shall
not eliminate or limit the liability of a director: (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) the liability imposed pursuant to the provisions
of R.I.G.L. Section 7-1.1-43 (as in effect or as hereafter amended); or (iv) for
any transaction from which the director derived an improper personal benefit
unless said transaction is permitted by R.I.G.L. Section 7-1.1-37.1 (as in
effect or as hereafter amended). If the Rhode Island General Laws are amended
after the adoption of this Article TENTH to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of each director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Rhode Island General Laws, as so amended.
Neither the amendment nor repeal of this Article TENTH nor the adoption of any
provision of these Articles of Incorporation inconsistent with this Article
TENTH shall eliminate or reduce the effect of this Article TENTH in respect of
any matter occurring, or any cause of action, suit or claim that, but for this
Article TENTH, would occur or arise, prior to such amendment, repeal or adoption
of an inconsistent provision.
(b) Notwithstanding any other provision of these Articles of Incorporation,
including Section EIGHTH (a), or the Bylaws of the Corporation (and
notwithstanding the fact that some lesser percentage may be specified by law,
these Articles of Incorporation or the Bylaws of the Corporation), and in
addition to such additional vote of the Preferred Stock as may be required by
the provisions of any series thereof or by applicable law, this Article TENTH
shall not be amended, altered, changed or repealed without:
(1) the affirmative vote of 80% of the Board of Directors and a
majority of Continuing Directors (as defined in Article SEVENTH of these
Articles of Incorporation), and
(2) the affirmative vote as to all stock held by the holders of 80% or
more of the outstanding Voting Shares (as defined in Article SEVENTH of
these Articles of Incorporation), voting separately as a class.
ELEVENTH: The Restated Articles of Incorporation correctly set forth
without change the corresponding provisions of the Articles of Incorporation as
heretofore amended, and supersede the original Articles of Incorporation and all
amendments thereto.
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EXHIBIT A
TERMS AND CONDITIONS OF
PREFERRED STOCK WITH CUMULATIVE AND ADJUSTABLE
DIVIDENDS, $20 PAR VALUE
(a) Designation. The designation of the class of Preferred Stock
provided for herein shall be "Preferred Stock with Cumulative and Adjustable
Dividends" (hereinafter called "the Adjustable Rate Preferred Stock") and the
number of shares constituting the class is One Million Five Hundred Thousand
(1,500,000).
(b) Dividend Rate.
(1) Dividend rates on the Adjustable Rate Preferred Stock for each
quarterly dividend period or portion thereof (hereinafter referred to as
a "Quarterly Dividend Period", and any Quarterly Dividend Period being
hereinafter individually referred to as a "Dividend Period" and
collectively referred to as "Dividend Periods"), which Quarterly Dividend
Periods shall commence on March 2, June 2, September 2 and December 2 in
each year and shall end on and include the day next preceding the first
day of the next Quarterly Dividend Period, shall be equal to 3.00% below
the Applicable Rate (as defined in paragraph (2) of this Section (b)) in
respect of such Quarterly Dividend Period, computed in the amount of $50
per share (the "Issue Price"). Anything to the contrary herein
notwithstanding, the dividend rate for any Quarterly Dividend Period
shall in no event be less than 6.00% or greater than 13.00% per annum in
each case computed on the Issue Price. Such dividends shall be cumulative
from the date of original issue of such shares and shall be payable when
and as declared by the Board, on March 1, June 1, September 1 and
December 1 of each year. Each such dividend shall be paid to the holder
of record of shares of the Adjustable Rate Preferred Stock as they appear
on the stock register of the Corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be fixed
by the Board. Dividends on account of arrears for any past Dividend
Periods may be declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such date, not
exceeding 45 days preceding the payment date thereof, as may be fixed by
the Board.
(2) Except as provided below in this paragraph, the "Applicable
Rate" for any Quarterly Dividend Period shall be the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate or the Twenty
Year Constant Maturity Rate (each as hereinafter defined) for such
Dividend Period. In the event that the Corporation determines in good
faith that for any reason one or more of such rates cannot be determined
for any Quarterly Dividend Period, then the Applicable Rate for such
Dividend Period shall be the higher of whichever of such rates can be so
determined. In the event that the Corporation determines in good faith
that none of such rates can be determined for any Quarterly Dividend
Period, then the Applicable Rate in effect for the preceding Dividend
Period shall be continued for such Dividend Period.
(3) Except as provided below in this paragraph, the "Treasury Bill
Rate" for each Quarterly Dividend Period shall be the arithmetic average
of the two most recent weekly per annum market discount rates (or the one
weekly per annum market discount rate, if only one such rate shall be
published during the relevant Calendar Period as provided below) for
three-month U.S. Treasury Bills, as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the ten
calendar days immediately preceding the March 1, June 1, September 1, or
December 1, as the case may be, prior to the Quarterly Dividend Period
for which the dividend rate on the Adjustable Rate Preferred Stock is
being determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum market discount rate during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum market
discount rates (or the one weekly per annum market discount rate, if only
one such rate shall be published during the relevant Calendar Period as
provided below) for three-month U.S. Treasury Bills, as published weekly
during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event
that a per annum market discount rate for
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three-month U.S. Treasury Bills shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury Bill
Rate for such Dividend Period shall be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall be published
during the relevant Calendar Period as provided below) for all of the
U.S. Treasury Bills then having maturities of not less than 80 nor more
than 100 days, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish such
rates, by any Federal Reserve Bank or by any U.S. Government department
or agency selected by the Corporation. In the event that the Corporation
determines in good faith that for any reason no such U.S. Treasury Bill
rates are published as provided above during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the per annum market discount rates based upon the closing
bids during such Calendar Period for each of the issues of marketable
non-interest bearing U.S. Treasury securities with a maturity of not less
than 80 nor more than 100 days from the date of each such quotation, as
quoted daily for each business day in New York City (or less frequently
if daily quotations shall not be generally available) to the Corporation
by at least three recognized U.S. Government securities dealers selected
by the Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the Treasury
Bill Rate for any Quarterly Dividend Period as provided above in this
paragraph, the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of
marketable interest-bearing U.S. Treasury securities with a maturity of
not less than 80 nor more than 100 days from the date of each such
quotation, as quoted daily for each business day in New York City (or
less frequently if daily quotations shall not be generally available) to
the Corporation by at least three recognized U.S. Government securities
dealers selected by the Corporation.
(4) Except as provided below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield, if
only one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly by the Federal Reserve
Board during the Calendar Period immediately prior to the ten calendar
days immediately preceding the March 1, June 1, September 1, or December
1, as the case may be, prior to the Quarterly Dividend Period for which
the dividend rate on the Adjustable Rate Preferred Stock is being
determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum Ten Year Average Yield during such Calendar
Period, then the Ten Year Constant Maturity Rate for such Dividend Period
shall be the arithmetic average of the two most recent weekly per annum
Ten Year Average Yields (or the one weekly per annum Ten Year Average
Yield, if only one such Yield shall be published during the relevant
Calendar Period as provided below), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event that a per
annum Ten Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Ten Year
Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum average yields to
maturity (or the one weekly average yield to maturity, if only one such
yield shall be published during the relevant Calendar Period as provided
below) for all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) then having
maturities of not less than eight nor more then twelve years, as
published during such Calendar Period by the Federal Reserve Board or, if
the Federal Reserve Board shall not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency selected by
the Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the Ten Year
Constant Maturity Rate for any Quarterly Dividend Period as provided
above in this paragraph, then the Ten Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities)
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with a final maturity date not less than eight nor more than twelve years
from the date of each such quotation, as quoted daily for each business
day in New York City (or less frequently if daily quotations shall not be
generally available) to the Corporation by at least three recognized U.S.
Government securities dealers selected by the Corporation.
(5) Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Twenty Year
Average Yields (or the one weekly per annum Twenty Year Average Yield, if
only one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly by the Federal Reserve
Board during the Calendar Period immediately prior to the ten calendar
days immediately preceding the March 1, June 1, September 1, or December
1, as the case may be, prior to the Quarterly Dividend Period for which
the dividend rate on Adjustable Rate Preferred Stock is being determined.
In the event that the Federal Reserve Board does not publish such a
weekly per annum Twenty Year Average Yield during such Calendar Period,
then the Twenty Year Constant Maturity Rate for such Dividend Period
shall be the arithmetic average of the two most recent weekly per annum
Twenty Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period as provided below), as published weekly during
such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event
that a per annum Twenty Year Average Yield shall not be published by the
Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then the
Twenty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum average yields
to maturity (or the one weekly average yield to maturity, if only one
such yield shall be published during the relevant Calendar Period as
provided below) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) then
having maturities of not less than eighteen nor more than twenty-two
years, as published during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board shall not publish such yields, by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that the Corporation determines
in good faith that for any reason the Corporation cannot determine the
Twenty Year Constant Maturity Rate for any Quarterly Dividend Period as
provided above in this paragraph, then the Twenty Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the per
annum average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities)
with a final maturity date not less than eighteen nor more than
twenty-two years from the date of each such quotation, as quoted daily
for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at
least three recognized U.S. Government securities dealers selected by the
Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and
the Twenty Year Constant Maturity Rate shall each be rounded to the
nearest five hundredths of a percentage point.
(7) The dividend rate with respect to each Quarterly Dividend Period
will be calculated as promptly as practicable by the Corporation
according to the appropriate method described herein. The mathematical
accuracy of each such calculation will be confirmed in writing by
independent accountants of recognized standing. The Corporation will
cause each dividend rate to be published in a newspaper of general
circulation in New York City prior to the commencement of the new
Quarterly Dividend Period to which it applies and will cause notice of
such dividend rate to be enclosed with the dividend payment checks next
mailed to the holders of shares of the Adjustable Rate Preferred Stock.
(8) For purposes of this Section (b), the term
(i) "Calendar Period" shall mean 14 calendar days;
(ii) "Special Securities" shall mean securities which can, at the
option of the holder, be surrendered at face value in payment of any
Federal estate tax or which provide tax benefits to the
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holder and are priced to reflect such tax benefits or which were
originally issued at a deep or substantial discount;
(iii) "Ten Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities of 20 years).
(9) No full dividends shall be declared or paid or set apart for
payment on Preferred Stock of any class or series ranking, as to
dividends, on a parity with or junior to the Adjustable Rate Preferred
Stock for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Adjustable Rate
Preferred Stock for all dividend payment periods terminating on or prior
to the date or payment of such full cumulative dividends. When dividends
are not paid in full, as aforesaid, upon the shares of the Adjustable
Rate Preferred Stock and any other class or Series of Preferred Stock
ranking on a parity as to dividends with the Adjustable Rate Preferred
Stock, all dividends declared upon shares of the Adjustable Rate
Preferred Stock and any other class or Series of Preferred Stock ranking
on a parity as to dividends with the Adjustable Rate Preferred Stock
shall be declared pro rata so that the amount of dividends declared per
share on the Adjustable Rate Preferred Stock and such other Preferred
Stock shall in all cases bear to each other the same ratio that accrued
dividends per share on the shares of the Adjustable Rate Preferred Stock
and such other Preferred Stock bear to each other. Holders of shares of
the Adjustable Rate Preferred Stock shall not be entitled to any
dividend, whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided, on the Adjustable Rate
Preferred Stock. No interest, or sum of money in lieu of interest, shall
be payable in respect of any dividend payment or payments on the
Adjustable Rate Preferred Stock which may be in arrears.
(10) So long as any shares of the Adjustable Rate Preferred Stock
are outstanding, no dividend (other than a dividend in Common Stock or in
any other stock ranking junior to the Adjustable Rate Preferred Stock as
to dividends and upon liquidation and other than as provided in paragraph
(9) of this Section (b)) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or
upon any other stock ranking junior to or on a parity with the Adjustable
Rate Preferred Stock as to dividends or upon liquidation, nor shall any
Common Stock nor any other stock of the Corporation ranking junior to or
on a parity with the Adjustable Rate Preferred Stock as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to the Adjustable Rate Preferred Stock as to
dividends and upon liquidation) unless, in each case, the full cumulative
dividends on all outstanding shares of the Adjustable Rate Preferred
Stock shall have been paid for all past dividend payment periods.
(11) Dividends payable on each share of the Adjustable Rate
Preferred Stock for each full Quarterly Dividend Period shall be computed
by dividing the dividend rate for such Quarterly Dividend Period by four
and applying such rate against the Issue Price. Dividends payable on the
Adjustable Rate Preferred Stock for any period less than a full Quarterly
Dividend Period shall be computed on the basis of a 360-day year
consisting of 30-day months.
(c) Redemption.
(1) The shares of this class shall not be redeemable prior to March
1, 1988. On and after March 1, 1988, the Corporation, at its option, may
redeem shares of the Adjustable Rate Preferred Stock, as a whole or in
part, at any time or from time to time, at a redemption price (i) in the
case of any redemption on a redemption date occurring on or after March
1, 1988, and prior to March 1, 1993, of $51.50 per share, and (ii) in the
case of any redemption on a redemption date occurring on or after March
1, 1993,
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of $50.00 per share, plus, in each case, accrued and unpaid dividends
thereon to the date fixed for redemption.
(2) In the event that fewer than all the outstanding shares of the
Adjustable Rate Preferred Stock are to be redeemed, the number of shares
to be redeemed shall be determined by the Board and the shares to be
redeemed shall be determined by lot or pro rata as may be determined by
the Board or by any other method as may be determined by the Board in its
sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of the
Adjustable Rate Preferred Stock, notice of such redemption shall be given
by first class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the redemption date, to each holder of record of
the shares to be redeemed, at such holder's address as the same appears
on the stock register of the Corporation. Each such notice shall state:
(i) the redemption date; (ii) the number of shares of the Adjustable Rate
Preferred Stock to be redeemed and, if fewer than all the shares held by
such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (iii) the redemption price; (iv) the place or places
where certificates for such shares are to be surrendered for payment of
the redemption price; and (v) that dividends on the shares to be redeemed
will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of the Adjustable Rate Preferred Stock so called for redemption
shall cease to accrue, and said shares shall no longer be deemed to be
outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly endorsed
or assigned for transfer, if the Board shall so require and the notice
shall so state), such shares shall be redeemed by the Corporation at the
redemption price aforesaid. In case fewer than all the shares represented
by any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(5) Any shares of the Adjustable Rate Preferred Stock which shall at
any time have been redeemed may, to the extent permitted by law, be
reissued as shares of such class.
(6) Notwithstanding the foregoing provision of this Section (c), if
any dividends on the Adjustable Rate Preferred Stock are in arrears, no
shares of this class shall be redeemed unless all outstanding shares of
the Adjustable Rate Preferred Stock are simultaneously redeemed, and the
Corporation shall not purchase or otherwise acquire any shares of the
Adjustable Rate Preferred Stock; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of the Adjustable
Rate Preferred Stock pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of the Adjustable Rate
Preferred Stock.
(d) Conversion or Exchange. The holders of shares of the Adjustable Rate
Preferred Stock shall not have any rights herein to convert such shares into
or exchange such shares for shares of any other class or classes or of any
other series of any class or classes of capital stock of the Corporation.
(e) Voting. The shares of the Adjustable Rate Preferred Stock shall not
have any voting powers, either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares is then required by law, the affirmative vote or consent of the
holders of two-thirds of all of the outstanding shares of the Adjustable
Rate Preferred Stock shall be required (i) with respect to any proposed
amendment of the Articles of Incorporation of the Corporation (or any
certificate amendatory thereto) which would (1) exclude or limit the
voting rights of the holders of such Adjustable Rate Preferred Stock, (2)
reduce the par value of the Adjustable Rate Preferred Stock, (3) change
any shares of Adjustable Rate Preferred Stock into a different number of
shares of Adjustable Rate Preferred Stock or into the same or a different
number of shares of another class of the Corporation's capital stock or
permit the conversion of shares of the Adjustable Rate Preferred Stock
into shares of any other class or series of Preferred Stock or any other
class of the Corporation's capital stock, (4) fix, change or abolish the
designation of the Adjustable
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Rate Preferred Stock or of any of the relative rights, preferences and
limitations thereof, or (5) subordinate the rights of holders of
Adjustable Rate Preferred Stock by authorizing shares having preferences
which are in any respect superior to those of the Adjustable Rate
Preferred Stock, and (ii) to authorized the sale, lease, exchange or
other disposition of all or substantially all of the assets or business
of the Corporation or the merger or consolidation of the Corporation into
or with any other corporation or corporations if the plan of merger or
consolidation, or of sale, lease or conveyance, shall contain any
provision which, if contained in an amendment to the Articles of
Incorporation of the Corporation, would entitle the holders of shares of
Adjustable Rate Preferred Stock to vote and to vote as a class thereon.
(2) If at the time of any annual meeting of stockholders for the
election of directors a default in preference dividends on the Adjustable
Rate Preferred Stock and any other class or series of Preferred Stock
which is not otherwise entitled to vote upon the election of directors
(the "Non-Voting Preferred Stock") shall exist, the number of directors
constituting the Board of Directors of the Corporation shall be increased
by two, and the holders of the Non-Voting Preferred Stock shall have the
right at such meeting, voting together as a single class without regard
to series or class, to the exclusion of the holders of Common Stock, to
elect two directors of the Corporation to fill such newly created
directorships. Such right shall continue until there are no dividends in
arrears upon the Non-Voting Preferred Stock. Each director elected by the
holders of shares of Non-Voting Preferred Stock (herein called a
"Preferred Director") shall continue to serve as such director for the
full term for which he shall have been elected, notwithstanding that
prior to the end of such term a default in preference dividends shall
cease to exist. Any Preferred Director may be removed by, and shall not
be removed except by, the vote of the holders of record of the
outstanding shares of Non-Voting Preferred Stock, voting together as a
single class without regard to series or class, at a meeting of the
stockholders, or of the holders of shares of Non-Voting Preferred Stock,
called for that purpose. So long as a default in any preference dividends
on the Non-Voting Preferred Stock shall exist (A) any vacancy in the
office of a Preferred Director may be filled (except as provided in the
following clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case of
the removal of any Preferred Director, the vacancy may be filled by the
vote of the holders of the outstanding shares of Non-Voting Preferred
Stock, voting together as a single class without regard to series or
class, at the same meeting at which such removal shall be voted. Each
director appointed as aforesaid by the remaining Preferred Director shall
be deemed, for all purposes hereof, to be a Preferred Director. Whenever
the term of office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of directors
constituting the Board of Directors of the Corporation shall be reduced
by two. For the purposes hereof, a "default in preference dividends" on
the Non-Voting Preferred Stock shall be deemed to have occurred whenever
the amount of accrued dividends upon any class or series of the
Non-Voting Preferred Stock shall be equivalent to six full quarter-yearly
dividends or more, and, having so occurred, such default shall be deemed
to exist thereafter until, but only until, all accrued dividends on all
shares then outstanding shall have been paid to the end of the last
preceding Quarterly Dividend Period.
(f) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares
of the Adjustable Rate Preferred Stock shall be entitled to receive out
of the assets of the Corporation, available for distribution before any
payment or distribution shall be made on the Common Stock or on any other
class of stock ranking junior to the Preferred Stock upon liquidation,
liquidation distributions in the amount of $50 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the assets or
business of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the Corporation,
shall be deemed to be a dissolution, liquidation or winding up, voluntary
or involuntary, for the purposes of this Section (f).
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(3) After the payment to the holders of the shares of the Adjustable
Rate Preferred Stock of the full preferential amounts provided for in
this Section (f), the holders of the Adjustable Rate Preferred Stock as
such shall have no right or claim to and shall not be entitled to
participate further in any distribution of any of the remaining assets of
the Corporation.
(4) In the event the assets of the Corporation available for
distribution to the holders of shares of the Adjustable Rate Preferred
Stock upon any dissolution, liquidation or winding up of the Corporation,
whether voluntary or involuntary, shall be insufficient to pay in full
all amounts to which such holders are entitled pursuant to paragraph (1)
of this Section (f), no such distribution shall be made on account of any
shares of any other class or series of Preferred Stock ranking on a
parity with the shares of the Adjustable Rate Preferred Stock upon such
dissolution, liquidation or winding up unless proportionate distributive
amounts shall be paid on account of the shares of the Adjustable Rate
Preferred Stock, ratably, in proportion to the full preferential,
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the
Corporation, voluntary or involuntary, the holders of shares of the
Adjustable Rate Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to
its stockholders all amounts to which such holders are entitled pursuant
to paragraph (1) of this Section (f) before any payment shall be made to
the holders of any class of capital stock of the Corporation ranking
junior upon liquidation to this class.
(g) For purposes of this resolution, any stock of any class or classes of
the Corporation shall be deemed to rank:
(1) prior to the shares of Adjustable Rate Preferred Stock, either
as to dividends or upon liquidation, if the holders of such class or
classes shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the holders
of shares of this Adjustable Rate Preferred Stock;
(2) on a parity with shares of this Adjustable Rate Preferred Stock,
either as to dividends or upon liquidation, whether or not the dividend
rates, dividend payment dates or redemption or liquidation prices per
share or sinking fund provisions, if any, be different from those of
Adjustable Rate Preferred Stock, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case
may be, in proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as between
the holders of such stock and the holders of shares of Adjustable Rate
Preferred Stock; and
(3) junior to shares of this Adjustable Rate Preferred Stock, either
as to dividends or upon liquidation, if such class shall be Common Stock
or if the holders of shares of Adjustable Rate Preferred Stock shall be
entitled to receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case
may be, in preference or priority to the holders of shares of such class
or classes.
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EXHIBIT B
Preferred Stock with Cumulative and Adjustable Dividends
(a) Designation. The designation of the series of Preferred Stock shall
be "Preferred Stock with Cumulative and Adjustable Dividends" (hereinafter
called this "Series") and the number of shares constituting this Series is One
Million (1,000,000).
(b) Dividend Rate.
(1) Dividend rates on the shares of this Series shall be: (i) for
the period (the "Initial Dividend Period") from the date of their
original issue to and including May 31, 1983, the rate shall be 9.40% per
annum computed on the basis of an issue price thereof of $50.00 per share
(the "Issue Price"), and (ii) for each quarterly dividend period
(hereinafter referred to as a "Quarterly Dividend Period"; and the
Initial Dividend Period or any Quarterly Dividend Period being
hereinafter individually referred to as a "Dividend Period" and
collectively referred to as "Dividend Periods") thereafter, which
Quarterly Dividend Periods shall commence on March 1, June 1, September 1
and December 1 in each year and shall end on and include the day next
preceding the first day of the next Quarterly Dividend Period, at a rate
of the Issue Price thereof equal to 3.25% below the Applicable Rate (as
defined in paragraph (2) of this Section (b)) in respect of such
Quarterly Dividend Period. Anything to the contrary herein
notwithstanding, the dividend rate for any Quarterly Dividend Period
shall in no event be less than 6.00% or greater than 12.00% per annum.
Such dividends shall be cumulative from the date of original issue of
such shares and shall be payable, when and as declared by the Board, on
March 1, June 1, September 1 and December 1 of each year, commencing June
1, 1983. Each such dividend shall be paid to the holders of record of
shares of this Series as they appear on the stock register of the
Corporation on such record date, not exceeding 30 days preceding the
payment date thereof, as shall be fixed by the Board. Dividends on
account of arrears for any past Dividend Periods may be declared and paid
at any time, without reference to any regular dividend payment date, to
holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board.
(2) Except as provided below in this paragraph, the "Applicable
Rate" for any Quarterly Dividend Period shall be the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate or the Twenty
Year Constant Maturity Rate (each as hereinafter defined) for such
Dividend Period. In the event that the Corporation determines in good
faith that for any reason one or more of such rates cannot be determined
for any Quarterly Dividend Period, then the Applicable Rate for such
Dividend Period shall be the higher of whichever of such rates can be so
determined. In the event that the Corporation determines in good faith
that none of such rates can be determined for any Quarterly Dividend
Period, then the Applicable Rate in effect for the preceding Dividend
Period shall be continued for such Dividend Period.
(3) Except as provided below in this paragraph, the "Treasury Bill
Rate" for each Quarterly Dividend Period shall be the arithmetic average
of the two most recent weekly per annum market discount rates (or the one
weekly per annum market discount rate, if only one such rate shall be
published during the relevant Calendar Period as provided below) for
three-month U.S. Treasury Bills, as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the last
ten calendar days of February, May, August, or November, as the case may
be, prior to the Quarterly Dividend Period for which the dividend rate on
this Series is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum market discount rate
during such Calendar Period, then the Treasury Bill Rate for such
Dividend Period shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published during the
relevant Calendar Period as provided below) for three-month U.S. Treasury
Bills, as published weekly during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or agency selected by
the Corporation. In the event that a per annum market discount rate for
three-month U.S. Treasury Bills shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
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department or agency during such Calendar Period, then the Treasury Bill
Rate for such Dividend Period shall be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall be published
during the relevant Calendar Period as provided below) for all of the
U.S. Treasury Bills then having maturities of not less than 80 nor more
than 100 days, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish such
rates, by any Federal Reserve Bank or by any U.S. Government department
or agency selected by the Corporation. In the event that the Corporation
determines in good faith that for any reason no such U.S. Treasury Bill
rates are published as provided above during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the per annum market discount rates based upon the closing
bids during such Calendar Period for each of the issues of marketable
non-interest bearing U.S. Treasury securities with a maturity of not less
than 80 nor more than 100 days from the date of each such quotation, as
quoted daily for each business day in New York City (or less frequently
if daily quotations shall not be generally available) to the Corporation
by at least three recognized U.S. Government securities dealers selected
by the Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the Treasury
Bill Rate for any Quarterly Dividend Period as provided above in this
paragraph, the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of
marketable interest-bearing U.S. Treasury securities with a maturity of
not less than 80 nor more than 100 days from the date of each such
quotation, as quoted daily for each business day in New York City (or
less frequently if daily quotations shall not be generally available) to
the Corporation by at least three recognized U.S. Government securities
dealers selected by the Corporation.
(4) Except as provided below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield, if
only one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly by the Federal Reserve
Board during the Calendar Period immediately prior to the last ten
calendar days of February, May, August or November, as the case may be,
prior to the Quarterly Dividend Period for which the dividend rate on
this Series is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum Ten Year Average Yield
during such Calendar Period, then the Ten Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (or the one weekly per
annum Ten Year Average Yield, if only one such Yield shall be published
during the relevant Calendar Period as provided below), as published
weekly during such Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Corporation. In the
event that a per annum Ten Year Average Yield shall not be published by
the Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then the Ten
Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum average yields
to maturity (or the one weekly average yield to maturity, if only one
such yield shall be published during the relevant Calendar Period as
provided below) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) then
having maturities of not less than eight nor more than twelve years, as
published during such Calendar Period by the Federal Reserve Board or, if
the Federal Reserve Board shall not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency selected by
the Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the Ten Year
Constant Maturity Rate for any Quarterly Dividend Period as provided
above in this paragraph, then the Ten Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities)
with a final maturity date not less than eight nor more than twelve years
from the date of each such quotation, as quoted daily for each business
day in New York City (or less
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frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized U.S. Government securities
dealers selected by the Corporation.
(5) Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Twenty Year
Average Yields (or the one weekly per annum Twenty Year Average Yield, if
only one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly by the Federal Reserve
Board during the Calendar Period immediately prior to the last ten
calendar days of February, May, August or November, as the case may be,
prior to the Quarterly Dividend Period for which the dividend rate on
this Series is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum Twenty Year Average Yield
during such Calendar Period, then the Twenty Year Constant Maturity Rate
for such Dividend Period shall be the arithmetic average of the two most
recent weekly per annum Twenty Year Average Yields (or the one weekly per
annum Twenty Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as
published weekly during such Calendar Period by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the
Corporation. In the event that a per annum Twenty Year Average Yield
shall not be published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Twenty Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most recent
weekly per annum average yields to maturity (or the one weekly average
yield to maturity, if only one such yield shall be published during the
relevant Calendar Period as provided below) for all of the actively
traded marketable U.S. Treasury fixed interest rate securities (other
than Special Securities) then having maturities of not less than eighteen
nor more than twenty-two years, as published during such Calendar Period
by the Federal Reserve Board or, if the Federal Reserve Board shall not
publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event
that the Corporation determines in good faith that for any reason the
Corporation cannot determine the Twenty Year Constant Maturity Rate for
any Quarterly Dividend Period as provided above in this paragraph, then
the Twenty Year Constant Maturity Rate for such Dividend Period shall be
the arithmetic average of the per annum average yields to maturity based
upon the closing bids during such Calendar Period for each of the issues
of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not
less than eighteen nor more than twenty-two years from the date of each
such quotation, as quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally available)
to the Corporation by at least three recognized U.S. Government
securities dealers selected by the Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and
the Twenty Year Constant Maturity Rate shall each be rounded to the
nearest five hundredths of a percentage point.
(7) The dividend rate with respect to each Quarterly Dividend Period
will be calculated as promptly as practicable by the Corporation
according to the appropriate method described herein. The mathematical
accuracy of each such calculation will be confirmed in writing by
independent accountants of recognized standing. The Corporation will
cause each dividend rate to be published in a newspaper of general
circulation in New York City prior to the commencement of the new
Quarterly Dividend Period to which it applies and will cause notice of
such dividend rate to be enclosed with the dividend payment checks next
mailed to the holders of shares of this Series.
(8) For purposes of this Section (b), the term
(i) "Calendar Period" shall mean 14 calendar days;
(ii) "Special Securities" shall mean securities which can, at the
option of the holder, be surrendered at face value in payment of any
Federal estate tax or which provide tax benefits to the holder and are
priced to reflect such tax benefits or which were originally issued at
a deep or substantial discount;
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(iii) "Ten Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities of 20 years).
(9) No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on
a parity with or junior to this Series for any period unless full
cumulative dividends have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for
such payment on this Series for all dividend payment periods terminating
on or prior to the date of payment of such full cumulative dividends.
When dividends are not paid in full, as aforesaid, upon the shares of
this Series and any other Preferred Stock ranking on a parity as to
dividends with this Series, all dividends declared upon shares of this
Series and any other Preferred Stock ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of
dividends declared per share on this Series and such other Preferred
Stock shall in all cases bear to each other the same ratio that accrued
dividends per share on the shares of this Series and such other Preferred
Stock bear to each other. Holders of shares of this Series shall not be
entitled to any dividend, whether payable in cash, property or stocks, in
excess of full cumulative dividends, as herein provided, on this Series.
No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on this Series which may be
in arrears.
(10) So long as any shares of this Series are outstanding, no
dividend (other that a dividend in Common Stock or in any other stock
ranking junior to this Series as to dividends and upon liquidation and
other than as provided in paragraph (9) of this Section (b)) shall be
declared or paid or set aside for payment or other distribution declared
or made upon the Common Stock or upon any other stock ranking junior to
or on a parity with this Series as to dividends or upon liquidation, nor
shall any Common Stock nor any other stock of the Corporation ranking
junior to or on a parity with this Series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to this Series as to dividends and upon
liquidation) unless, in each case, the full cumulative dividends on all
outstanding shares of this Series shall have been paid for all past
dividend payment periods.
(11) Dividends payable on each share of this Series for each full
Quarterly Dividend Period shall be computed by dividing the dividend rate
for such Quarterly Dividend Period by four and applying such rate against
the Issue Price. Dividends payable on this Series for any period less
than a full Quarterly Dividend Period, and for the Initial Dividend
Period, shall be computed on the basis of a 360 day year consisting of
30-day months.
(c) Redemption.
(1) The shares of this Series shall not be redeemable prior to March
1, 1988. On and after March 1, 1988, the Corporation, at its option, may
redeem shares of this Series, as a whole or in part, at any time or from
time to time, at a redemption price (i) in the case of any redemption on
a redemption date occurring on or after March 1, 1988, and prior to March
1, 1993, of $51.50 per share, and (ii) in the case of any redemption on a
redemption date occurring on or after March 1, 1993, of $50.00 per share,
plus, in each case, accrued and unpaid dividends thereon to the date
fixed for redemption.
(2) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board and the shares to be redeemed shall be determined
by lot or pro rata as may be determined by the Board or by any other
method as may be determined by the Board in its sole discretion to be
equitable.
(3) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed,
at such holder's address as the
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same appears on the stock register of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of this
Series to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from
such holder; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed
will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of this Series so called for redemption shall cease to accrue, and
said shares shall no longer be deemed to be outstanding, and all rights
of the holders thereof as stockholders of the Corporation (except the
right to receive from the Corporation the redemption price) shall cease.
Upon surrender in accordance with said notice of the certificates for any
shares so redeemed (properly endorsed or assigned for transfer, if the
Board shall so require and the notice shall so state), such shares shall
be redeemed by the Corporation at the redemption price aforesaid. In case
fewer than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
(5) Any shares of this Series which shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series
until such shares are once more designated as part of a particular series
by the Board.
(6) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on this Series are in arrears, no shares of this Series
shall be redeemed unless all outstanding shares of this Series are
simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of this Series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of this
Series pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of this Series.
(d) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be entitled
to receive out of the assets of the Corporation, before any payment or
distribution shall be made on the Common Stock or on any other class of
stock ranking junior to the Preferred Stock upon liquidation, the amount
of $50 per share, plus a sum equal to all dividends (whether or not
earned or declared) on such shares accrued and unpaid thereon to the date
of final distribution.
(2) Neither the sale of all or substantially all the property or
business of the Corporation, nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the Corporation,
shall be deemed to be a dissolution, liquidation or winding up, voluntary
or involuntary, for the purposes of this Section (d).
(3) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section (d), the
holders of this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
(4) In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to paragraph (1) of
this Section (d), no such distribution shall be made on account of any
shares of any other class or series of Preferred Stock ranking on a
parity with the shares of this Series upon such dissolution, liquidation
or winding up unless proportionate distributive amounts shall be paid on
account of the shares of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of shares of this Series then outstanding shall
be entitled to be paid out of the assets of the Corporation available for
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distribution to its stockholders all amounts to which such holders are
entitled pursuant to paragraph (1) of this Section (d) before any payment
shall be made to the holders of any class of capital stock of the
Corporation ranking junior upon liquidation to this Series.
(e) Conversion or Exchange. The holders of shares of this Series shall
not have any rights herein to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any class
or classes of capital stock of the Corporation.
(f) Voting. The shares of this Series shall not have any voting powers,
either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series at the time
outstanding, given in person or by proxy, either in writing or by a vote
at a meeting called for the purpose at which the holders of shares of
this Series shall vote together as a separate class, shall be necessary
for authorizing, effecting or validating the amendment, alteration or
repeal of any of the provisions of the Articles of Incorporation or of
any certificate amendatory thereof or supplemental thereto (including any
Certificate of Designations, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would adversely
affect the preferences, rights, powers or privileges of this Series.
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series and all other series of
Preferred Stock ranking on a parity with shares of this Series, either as
to dividends or upon liquidation, at the time outstanding, given in
person or by proxy, either in writing or by a vote at a meeting called
for the purpose at which the holders of shares of this Series and such
other series of Preferred Stock shall vote together as a single class
without regard to series, shall be necessary for authorizing, effecting
or validating the creation, authorization or issue of any shares of any
class of stock of the Corporation ranking prior to the shares of this
Series as to dividends or upon liquidation, or the reclassification of
any authorized stock of the Corporation into any such prior shares, or
the creation, authorization or issue of any obligation or security
convertible into or evidencing the right to purchase any such prior
shares.
(3) If at the time of any annual meeting of stockholders for the
election of directors a default in preference dividends on the Preferred
Stock shall exist, the number of directors constituting the Board of
Directors of the Corporation shall be increased by two, and the holders
of the Preferred Stock of all series shall have the right at such
meeting, voting together as a single class without regard to series, to
the exclusion of the holders of Common Stock, to elect two directors of
the Corporation to fill such newly created directorships. Such right
shall continue until there are no dividends in arrears upon the Preferred
Stock. Each director elected by the holders of shares of Preferred Stock
(herein called a "Preferred Director") shall continue to serve as such
director for the full term for which he shall have been elected,
notwithstanding that prior to the end of such term a default in
preference dividends shall cease to exist. Any Preferred Director may be
removed by, and shall not be removed except by, the vote of the holders
of record of the outstanding shares of Preferred Stock, voting together
as a single class without regard to series, at a meeting of the
stockholders, or of the holders of shares of Preferred Stock, called for
that purpose. So long as a default in any preference dividends on the
Preferred Stock shall exist (A) any vacancy in the office of a Preferred
Director may be filled (except as provided in the following clause (B))
by an instrument in writing signed by the remaining Preferred Director
and filed with the Corporation, and (B) in the case of the removal of any
Preferred Director, the vacancy may be filled by the vote of the holders
of the outstanding shares of Preferred Stock, voting together as a single
class without regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the remaining
Preferred Director shall be deemed for all purposes hereof, to be a
Preferred Director. Whenever the term of office of the Preferred
Directors shall end and a default in preference dividends shall no longer
exist, the number of directors constituting the Board of Directors of the
Corporation shall be reduced by two. For the purposes hereof, a "default
in preference dividends" on the Preferred Stock shall be deemed to have
occurred whenever the amount of accrued dividends upon any series of the
Preferred Stock shall be equivalent to six full quarter-yearly dividends
or more, and,
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having so occurred, such default shall be deemed to exist thereafter
until, but only until, all accrued dividends on all shares of Preferred
Stock of each and every series then outstanding shall have been paid to
the end of the last preceding quarterly dividend period.
(g) Reacquired Shares. Shares of this Series which have been issued and
reacquired through redemption or purchase shall, upon compliance with an
applicable provision of the Rhode Island Business Corporation Act, have the
status of authorized and unissued shares of Preferred Stock and may be
reissued, but only as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board.
(h) For purposes of this resolution, any stock of any class or classes of
the Corporation shall be deemed to rank:
(1) prior to the shares of this Series, either as to dividends or
upon liquidation, if the holders of such class or classes shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case
may be, in preference or priority to the holders of shares of this
Series;
(2) on a parity with shares of this Series, either as to dividends
or upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of this Series, if the
holders of such stock shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in proportion to their respective
dividend rates or liquidation prices, without preference or priority, one
over the other, as between the holders of such stock and the holders of
shares of this Series; and
(3) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of
shares of this Series shall be entitled to receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the holders
of shares of such class or classes.
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EXHIBIT C
CERTIFICATE OF THE VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE
NOT BEEN SET FORTH IN THE ARTICLES OF INCORPORATION
OR IN ANY AMENDMENT THERETO, OF THE
SERIES I 12% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
FLEET FINANCIAL GROUP, INC.
------------------------
Pursuant to Section 7-1.1-15 of the
Rhode Island Business Corporation Act
------------------------
We, the undersigned, J. Terrence Murray and William C. Mutterperl, the
Chairman and President and the Secretary, respectively, of FLEET/NORSTAR
FINANCIAL GROUP, INC., a Rhode Island corporation (hereinafter called the
"Corporation"), DO HEREBY CERTIFY that the following resolution was duly
adopted by the Board of Directors of the Corporation at a meeting duly
convened and held on December 21, 1988, at which a quorum was present and
acting throughout.
"RESOLVED, that pursuant to authority conferred upon the Board of
Directors (the "Board") of Fleet/Norstar Financial Group, Inc., a Rhode Island
corporation (the "Corporation"), by the Articles of Incorporation (the
"Articles of Incorporation") of the Corporation, the Board hereby creates a
series of Preferred Stock of the Corporation to consist of 12,553 shares, and
hereby fixes the voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such series (in addition
to the designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
thereof, set forth in the Articles of Incorporation which are applicable to
the Preferred Stock of all series) as follows:
(a) Designation. The designation of the series of Preferred Stock
created by this resolution shall be "Series I 12% Cumulative Convertible
Preferred Stock" (hereinafter called this "Series I") and the number of shares
constituting this Series I is Twelve Thousand Five Hundred Fifty-Three
(12,553).
(b) Dividends. The holders of shares of this Series I shall be entitled
to receive dividends thereon at the rate of 12% per annum computed on the
basis of an issue price thereof of $100 per share, and no more, payable
quarterly out of the funds of the Corporation legally available for the
payment of dividends, as and when declared by the Board of Directors, before
any dividend shall be declared, set apart for, or paid upon the Common Stock
of the Corporation. The dividends on shares of the Series I shall be
cumulative, so that if the Corporation fails in any quarter to pay such
dividends on all of the issued and outstanding shares of the Series I, such
deficiency in dividends shall be paid fully, but without interest, before any
dividends shall be paid on, or set apart for, the Common Stock of the
Corporation. The Board of Directors, in its discretion, may declare and pay
dividends on the Common Stock of the Corporation concurrently with dividends
on the Series I or any dividend period when such dividends may be paid legally
to said Common Stock; provided, that all accumulated dividends on this Series
I for all previous dividend periods have been paid in full.
(c) Payment in Liquidation. In the event of the dissolution or
liquidation of the Corporation, there shall be paid to the holders of shares
of this Series I $100.00 per share plus the amount of all unpaid accumulated
dividends thereon, without interest, before any sum shall be paid to or any
assets distributed among holders of the Common Stock of the Corporation.
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(d) Conversion Rights. Shares of this Series I at the option of the
holder at any time, may be converted into the Common Stock, $1.00 par value,
of the Corporation upon the following terms:
(1) Any holder of shares of this Series I desiring to avail himself
of the option for conversion, shall deliver, duly endorsed in blank, the
certificates representing the shares to be converted to the Treasurer of
the Corporation, 50 Kennedy Plaza, Providence, Rhode Island 02903, and at
the same time notify the Treasurer in writing that such holder desires to
convert his shares into Common Stock of the Corporation;
(2) Upon receipt by the Treasurer of the Corporation of certificates
representing shares of this Series I and a notice that the holder thereof
desires to convert the same, the Corporation forthwith shall cause to be
issued to the holder of shares of this Series I surrendering the same
20.18 shares, adjusted as required by subparagraph (d)(6), of the Common
Stock of the Corporation of $1.00 par value for each share of this Series
I surrendered, and shall deliver to such holder a certificate in due form
for such Common Stock;
(3) The Board of Directors, from time to time, shall reserve
sufficient shares of the unissued Common Stock of the Corporation to be
issued only in conversion for the shares of this Series I as herein
provided;
(4) Shares of this Series I which have been converted hereunder
shall revert to the status of unissued shares;
(5) The provisions for conversion of shares of this Series I shall
be subject to all applicable statutory and regulatory limitations and
restrictions;
(6) Nothing in these provisions shall limit the right of the
Corporation to issue or to agree to issue any of its capital stock or
other securities, in any manner, or for any consideration permitted by
law, including, but not limited to, any public or private offering, stock
reinvestment and purchase plan, employee stock plans, mergers,
consolidations, or other acquisitions of any kind, provided however, if
the Corporation prior to conversion of shares of this Series I,
establishes, from and after the date of issue of said Series I, a record
date for a stock dividend on its Common Stock or a stock split or a
combination of its Common Stock, or for any distribution to all of its
Common Stock other than regularly declared dividends, the Board of
Directors shall adjust appropriately the number of shares of Common Stock
into which each outstanding share of this Series I will be converted, as
if said conversion had been made effective immediately before said record
date.
(7) Nothing contained in this Series I shall require the Corporation
to issue fractional shares of Common Stock upon conversion of shares of
this Series I. If fractional shares result from such a conversion, cash
will be paid in lieu thereof based upon the closing sale price of Common
Stock on the business day prior to such conversion.
(e) Conversion Obligation. The shares of the Series I, at the option of
the Corporation at any time after December 31, 1990, must be converted into
the Common Stock of the Corporation on the following terms:
(1) The Corporation may demand conversion of any shares of this
Series I at any time after December 31, 1990, by written notice to the
holder thereof. Upon receipt of a demand for conversion the holder shall
deliver, duly endorsed in blank, the certificates representing the shares
for which conversion has been demanded to the Treasurer of the
Corporation, 50 Kennedy Plaza, Providence, Rhode Island 02903;
(2) Upon receipt by the Treasurer of certificates representing
shares of this Series I for which conversion has been demanded, the
Corporation forthwith shall cause to be issued to the holder of the
shares of this Series I delivered in compliance with the demand for
conversion 20.18 shares, adjusted as required by subparagraph (d)(6), of
the Common Stock of the Corporation of $1.00 par value for each share of
this Series I delivered pursuant to said demand;
C-2
<PAGE>
(3) No demand for conversion shall be made by the Corporation unless
there exists adequate authorized but unissued shares of its Common Stock
of $1.00 par value to support the conversion;
(4) Shares of this Series I which have been converted hereunder
shall revert to the status of unissued shares;
(5) Following demand for conversion all dividend and preference
rights material to the shares of the Series I subject to the demand shall
cease and the holder shall be entitled only to issue of the shares of
Common Stock provided for herein; dividends on said Common Stock shares
will be held by the Corporation and paid over to the holder without
interest on the conversion exchange;
(6) These provisions for mandatory conversion of shares of this
Series I of the Corporation shall be subject to all applicable statutory
and regulatory limitations and restrictions.
(f) Voting. At any meeting of the stockholders of the Corporation, the
shares of this Series I shall be entitled to the number of votes for each
share of the Series I held that would equal the number of shares of Common
Stock resulting from conversion on the record date of the meeting. The shares
of this Series I and the Common Stock shall be considered a single class of
stock for voting purposes as provided in R.I.G.L. Section 7-1.1-31, except
where voting by class is required under R.I.G.L. 7-1.1-1 et seq.
(g) Relation to Other Preferred Classes of Stock. This Series I is equal
in rank and preference with the Series II 6 1/2% Cumulative Convertible
Preferred Stock, the Preferred Stock, $1.00 par value, and the Preferred Stock
with Cumulative and Adjustable Dividends, $20.00 par value."
IN WITNESS WHEREOF, this Certificate has been made under the seal of
Fleet/Norstar Financial Group, Inc., and has been signed by the undersigned,
J. Terrence Murray, its Chairman and President, and William C. Mutterperl, its
Secretary, respectively, this day of , 1988.
FLEET/NORSTAR FINANCIAL GROUP, INC.
[Seal]
By________________________________
(Chairman and President)
By________________________________
(Secretary)
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In said County and State on this day of , 1988, personally
appeared before me, J. Terrence Murray and William C. Mutterperl, the Chairman
and President and the Secretary, respectively, of Fleet/Norstar Financial
Group, Inc., to me known and known by me to be the parties executing the
foregoing instrument, and they acknowledged said instrument by them executed
to be their free act and deed and the free act and deed of said Fleet/Norstar
Financial Group, Inc.
----------------------------------
Notary Public
C-3
<PAGE>
EXHIBIT D
CERTIFICATE OF THE VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE
NOT BEEN SET FORTH IN THE ARTICLES OF INCORPORATION
OR IN ANY AMENDMENT THERETO, OF THE
SERIES II 6 1/2% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
FLEET FINANCIAL GROUP, INC.
------------------------
Pursuant to Section 7-1.1-15 of the
Rhode Island Business Corporation Act
------------------------
We, the undersigned, J. Terrence Murray and William C. Mutterperl, the
Chairman and President and the Secretary, respectively, of FLEET/NORSTAR
FINANCIAL GROUP, INC., a Rhode Island corporation (hereinafter called the
"Corporation"), DO HEREBY CERTIFY that the following resolution was duly
adopted by the Board of Directors of the Corporation at a meeting duly
convened and held on December 21, 1988, at which a quorum was present and
acting throughout.
"RESOLVED, that pursuant to authority conferred upon the Board of
Directors (the "Board") of Fleet/Norstar Financial Group, Inc., a Rhode Island
corporation (the "Corporation"), by the Articles of Incorporation (the
"Articles of Incorporation") of the Corporation, the Board hereby creates a
series of Preferred Stock of the Corporation to consist of 96,000 shares, and
hereby fixes the voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such series (in addition
to the designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
thereof, set forth in the Articles of Incorporation which are applicable to
the Preferred Stock of all series) as follows:
(a) Designation. The designation of the series of Preferred Stock
created by this resolution shall be "Series II 6 1/2% Cumulative Convertible
Preferred Stock" (hereinafter called this "Series II") and the number of
shares constituting this Series II is Ninety-Six Thousand (96,000).
(b) Dividends. The holders of shares of this Series II shall be entitled
to receive dividends thereon at the rate of 6 1/2% per annum computed on the
basis of an issue price thereof of $100 per share and no more, payable
quarterly out of the funds of the Corporation legally available for the
payment of dividends, as and when declared by the Board of Directors, before
any dividend shall be declared, set apart for, or paid upon the Common Stock
of the Corporation. The dividends on shares of this Series II shall be
cumulative, so that if the Corporation fails in any quarter to pay such
dividends on all of the issued and outstanding shares of this Series II, such
deficiency in dividends shall be paid fully, but without interest, before any
dividends shall be paid on, or set apart for, the Common Stock of the
Corporation. The Board of Directors, in its discretion, may declare and pay
dividends on the Common Stock of the Corporation concurrently with dividends
on shares of this Series II or any dividend period when such dividends may be
paid legally to said Common Stock; provided, that all accumulated dividends on
shares of this Series II for all previous dividend periods have been paid in
full.
(c) Payment in Liquidation. In the event of the dissolution or
liquidation of the Corporation, there shall be paid to the holders of shares
of this Series II $100.00 per share plus the amount of all unpaid accumulated
dividends thereon, without interest, before any sum shall be paid to or any
assets distributed among holders of the Common Stock of the Corporation.
D-1
<PAGE>
(d) Conversion Rights. Shares of this Series II, at the option of the
holder at any time, may be converted into the Common Stock, $1.00 par value,
of the Corporation upon the following terms:
(1) Any holder of shares of this Series II desiring to avail himself
of the option for conversion shall deliver, duly endorsed in blank, the
certificates representing the shares to be converted to the Treasurer of
the Corporation, 50 Kennedy Plaza, Providence, Rhode Island 02903, and at
the same time notify the Treasurer in writing that such holder desires to
convert his shares into Common Stock of the Corporation;
(2) Upon receipt by the Treasurer of the Corporation of certificates
representing shares of this Series II and a notice that the holder
thereof desires to convert the same, the Corporation forthwith shall
cause to be issued to the holder of shares of this Series II surrendering
the same 4.319 shares, adjusted as required by subparagraph (d)(6), of
the Common Stock of the Corporation of $1.00 par value for each share of
this Series II surrendered, and shall deliver to such holder a
certificate in due form for such Common Stock;
(3) The Board of Directors, from time to time, shall reserve
sufficient shares of the unissued Common Stock of the Corporation to be
issued only in conversion for the shares of this Series II as herein
provided;
(4) Shares of this Series II which have been converted hereunder
shall revert to the status of unissued shares;
(5) These provisions for conversion of shares of this Series II
shall be subject to all applicable statutory and regulatory limitations
and restrictions;
(6) Nothing in these provisions shall limit the right of the
Corporation to issue or to agree to issue any of its capital stock or
other securities, in any manner, or for any consideration permitted by
law, including, but not limited to, any public or private offering, stock
reinvestment and purchase plan, employee stock plans, mergers,
consolidations, or other acquisitions of any kind, provided however, if
the Corporation prior to conversion of shares of this Series II,
establishes, from and after the date of issue of said Series II, a record
date for a stock dividend on its Common Stock or a stock split or a
combination of its Common Stock, or for any distribution to all of its
Common Stock other than regularly declared dividends, the Board of
Directors shall adjust appropriately the number of shares of Common Stock
into which each outstanding share of this Series II will be converted, as
if said conversion had been made effective immediately before said record
date.
(7) Nothing contained in this Series II shall require the
Corporation to issue fractional shares of Common Stock upon conversion of
shares of this Series II. If fractional shares result from such a
conversion, cash will be paid in lieu thereof based upon the closing sale
price of Common Stock on the business day prior to such conversion.
(e) Redemption. The Corporation shall have the right, at its option and
by resolution of its Board of Directors, to redeem at any time from time to
time the shares of this Series II, in whole or in part pro rata, upon payment
in cash in respect of each share redeemed at the then applicable redemption
price set forth herein, plus, in each case, an amount equal to all dividends
accrued and unpaid thereon to the date fixed for redemption; provided,
however, that no redemption may be effected prior to December 31, 1989 unless
for any 20 trading days during a period of 30 successive trading days ending
within five days preceding the date of the notice of redemption, the last sale
price of the Corporation's Common Stock as reported by the New York Stock
Exchange (or if the Corporation's Common Stock is not quoted on such exchange,
then on any U.S. securities exchange on which the Corporation's Common Stock
is listed as the Corporation may designate, or if the Corporation's Common
Stock is not listed on any U.S. securities exchange, then the closing sales or
asked quotation as reported by such other generally accepted source of
publicly reported sales or bid and asked quotations as the Corporation may
reasonably designate) has been at least 150% of the Conversion Price in effect
on the date of such notice of redemption. For purposes of this paragraph (e),
the Conversion Price in effect at any time for shares of this Series II shall
be deemed to be the number obtained by dividing $100.00
D-2
<PAGE>
by the Conversion Rate in effect at such time. Shares of this Series II are
redeemable, in whole or in part, at the option of the Corporation at the
following redemption prices:
If redeemed during the twelve-month period beginning December 31, 1987
-- $105.85 per share
If redeemed during the twelve-month period beginning December 31, 1988
-- $105.20 per share
If redeemed during the twelve-month period beginning December 31, 1989
-- $104.55 per share
If redeemed during the twelve-month period beginning December 31, 1990
-- $103.90 per share
If redeemed during the twelve-month period beginning December 31, 1991
-- $103.25 per share
If redeemed during the twelve-month period beginning December 31, 1992
-- $102.60 per share
If redeemed during the twelve-month period beginning December 31, 1993
-- $101.95 per share
If redeemed during the twelve-month period beginning December 31, 1994
-- $101.30 per share
If redeemed during the twelve-month period beginning December 31, 1995
-- $100.65 per share
Notice of any redemption specifying the date fixed for said redemption
and the place where the amount to be paid upon redemption is payable and
containing a statement of or reference to the conversion right set forth in
these provisions shall be mailed, postage prepaid, at least thirty (30) days
but not more than sixty (60) days prior to said redemption date to the holders
of record of shares of this Series II to be redeemed at their respective
addresses as the same shall appear on the books of the Corporation. If such
notice of redemption shall have been so mailed, and if on or before the
redemption date specified in such notice all funds necessary for such
redemption shall have been set aside by the Corporation separate and apart
from its other funds, in trust for the account of the holders of the shares so
to be redeemed, so as to be and continue to be available therefor, then, on
and after said redemption date, notwithstanding that any certificates for
shares of this Series II so called for redemption shall not have been
surrendered for cancellation, the shares represented thereby so called for
redemption shall be deemed to be no longer outstanding, the right to receive
dividends thereon shall cease to accrue, and all rights and preferences with
respect to such shares of this Series II so called for redemption shall
forthwith cease and terminate, except only the right of the holders thereof to
receive out of the funds so set aside in trust the amount payable on
redemption thereof, but without interest. In the event the holders of shares
of Series II which shall have been redeemed shall not within six years after
the redemption date claim any amount so set aside in trust for the redemption
of such shares, such amount shall be released from trust, and thereafter the
holders of such shares shall look only to the Corporation for payment of the
redemption price thereof, but without interest.
Any provision of this paragraph (e) to the contrary notwithstanding, in
the event that any quarterly dividend due on this Series II shall be in
default, and until all such defaults shall have been cured, the Corporation
shall not redeem any shares of this Series II unless all outstanding shares of
this Series II are simultaneously redeemed and the Corporation shall not
purchase or otherwise acquire any shares of this Series II except in
accordance with a purchase offer made by the Corporation on the same terms to
all holders of record of this Series II.
Shares of this Series II redeemed or otherwise purchased or acquired by
the Corporation shall not be reissued as shares of this Series II but shall
assume the status of authorized but unissued shares of this Series II of the
Corporation.
D-3
<PAGE>
(f) Voting. The holders of shares of this Series II shall have no voting
power except as set forth in this paragraph (f) and as provided in R.I.G.L.
sec.7-1.1-55:
(1) If at any time the equivalent of six or more full quarterly
dividends (whether or not consecutive) payable on the shares of this
Series II shall be in default, the number of directors constituting the
Board of Directors of the Corporation (subject to the limitation on the
number of directors as set forth in the Corporation's Bylaws), shall be
increased by two, and the holders of all outstanding shares of this
Series II (whether or not the payment of quarterly dividends shall be in
default on all shares of this Series II outstanding) shall have the
exclusive right, voting together as one class, to elect two directors to
fill such newly created directorships. This right shall remain vested
until all dividends in default on all outstanding shares of this Series
II have been paid in full, or declared and set apart for payment, at
which time: (i) the right shall terminate (subject to revesting in the
case of any subsequent default of the kind described above); (ii) the
term of the directors then in office elected by the holders of all
outstanding shares of this Series II as a class shall terminate; and
(iii) the number of directors constituting the Board of Directors of the
Corporation shall be reduced by two.
Whenever such right shall vest, it may be exercised initially either
at a special meeting of holders of shares of this Series II or at any
annual stockholders' meeting, but thereafter it shall be exercised only
at annual stockholders' meetings. Any Director who shall have been
elected by the holders of shares of this Series II as a class pursuant to
this subparagraph (f)(1) shall hold office for a term expiring (subject
to the earlier termination of the default in dividends) at the next
annual meeting of stockholders, and during such term may be removed at
any time, either for or without cause, by, and only by, the affirmative
votes of the holders of record of a majority of the outstanding shares of
this Series II given at a special meeting of such stockholders called for
such purpose, and any vacancy created by such removal may also be filled
at such meeting. Any vacancy caused by the death or resignation of a
Director who shall have been elected by the holders of shares of this
Series II as a class pursuant to this subparagraph (f)(1) may be filled
only by the holders of all outstanding shares of this Series II at a
meeting called for such purpose or by the sole remaining directors
elected by the holders of shares of this Series II.
Whenever a meeting of the holders of Series II is permitted or
required to be held pursuant to this subparagraph (f)(1), such meeting
shall be held at the earliest practicable date and the Secretary of the
Corporation shall call such meeting, providing written notice to all
holders of record of shares of this Series II in accordance with law,
upon the earlier of the following:
(i) as soon as reasonably practicable following the occurrence of
the event or events permitting or requiring such meeting hereunder; or
(ii) within twenty (20) days following receipt by said Secretary
of a written request for such a meeting, signed by the holders of
record of at least twenty-five percent (25%) of the shares of this
Series II then outstanding.
In the event that such meeting shall not be called by the proper
corporate officer within twenty (20) days after the receipt of such
request by the Secretary of the Corporation, or within twenty-five (25)
days after the mailing of the same within the United States of America by
registered mail addressed to the Secretary of the Corporation at its
principal office, then the holders of record of at least twenty-five
percent (25%) of the shares of this Series II then outstanding may
designate one of their number to call such a meeting at the expense of
the Corporation, and such meeting may be called by such person in the
manner and at the place provided in this subparagraph (f)(1). Any holder
of shares of this Series II so designated to call such meeting shall have
access to the stock books of the Corporation for the purpose of causing a
meeting of such stockholders to be so called.
Any provision of this subparagraph (f)(1) to the contrary
notwithstanding, no special meeting of the holders of shares of this
Series II: (i) shall be held during the ninety (90) day period next
preceding the date fixed for the annual meeting of stockholders of the
Corporation; or (ii) shall be required to be called or held in violation
of any law, rule or regulation.
D-4
<PAGE>
Any meeting of the holders of all outstanding shares of this Series
II entitled to vote as a class for the
election or removal of directors shall be held at the place at which the
last annual meeting of stockholders was held. At such meeting, the
presence in person or by proxy of the holders of a majority of the
outstanding shares of all outstanding Series II shall be required to
constitute a quorum; in the absence of a quorum, a majority of the
holders present in person or by proxy shall have the power to adjourn the
meeting from time to time without notice, other than announcement at the
meeting until a quorum shall be present.
(2) So long as any shares of this Series II are outstanding, the
Corporation shall not without the affirmative vote or consent of the
holders of at least a majority of the number of shares of this Series II
at the time outstanding voting as a class:
(i) amend, alter or repeal any of these provisions so as to
adversely affect the rights, powers or preferences of this Series II;
or
(ii) create or authorize any additional class of stock ranking
prior to this Series II in respect of dividends or distribution of
assets on liquidation; or
(iii) increase the authorized amount of any additional class of
stock ranking prior to the Series II in respect of dividends or
distribution of assets on liquidation; or
(iv) create or authorize any obligation or security convertible
into or evidencing the right to purchase shares of stock of any
additional class ranking prior to the Series II in respect of
dividends or distribution of assets on liquidation.
Any vote or consent required or permitted by this paragraph (f) may
be given in person or by proxy, either in writing or by vote at an annual
or special meeting called therefor.
(3) Any action specified in this paragraph (f) as requiring the
consent of the specified proportion of the votes of the shares of this
Series II at the time outstanding or represented at a meeting may be
taken with such lesser vote or consent or with such additional vote or
consent, if any, of stockholders as may be from time to time required by
law.
(4) For purposes of the voting rights set forth in this paragraph
(f), the holders of this Series II shall be entitled to one vote for each
share held.
(5) Holders of this Series II shall have no preemptive or
subscription rights.
(g) Relation to Other Preferred Classes of Stock. This Series II is
equal in rank and preference with the Series I 12% Cumulative Convertible
Preferred Stock, the Preferred Stock, $1.00 par value, and the Preferred Stock
with Cumulative and Adjustable Dividends, $20.00 par value."
IN WITNESS WHEREOF, this Certificate has been made under the seal of
Fleet/Norstar Financial Group, Inc., and has been signed by the undersigned,
J. Terrence Murray, its Chairman and President, and William C. Mutterperl, its
Secretary, respectively, this day of , 1988.
FLEET/NORSTAR FINANCIAL GROUP, INC.
[Seal]
By________________________________
(Chairman and President)
By________________________________
(Secretary)
D-5
<PAGE>
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In said County and State on this day of , 1988, personally
appeared before me J. Terrence Murray and William C. Mutterperl, the Chairman
and President and the Secretary, respectively, of Fleet/Norstar Financial
Group, Inc., to me known and known by me to be the parties executing the
foregoing instrument, and they acknowledged said instrument by them executed
to be their free act and deed and the free act and deed of said Fleet/Norstar
Financial Group, Inc.
----------------------------------
Notary Public
D-6
<PAGE>
EXHIBIT E
FLEET FINANCIAL GROUP, INC.
SERIES III 10.12% PERPETUAL PREFERRED STOCK
(a) DESIGNATION. The designation of the series of Preferred Stock shall be
"Series III 10.12% Perpetual Preferred Stock" (hereinafter called this "Series")
and the number of shares constituting this Series is One Million One Hundred
Thousand (1,100,000).
(b) DIVIDEND RATE.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 10.12% per annum computed on the basis of an
issue price thereof of $100 per share, and no more, payable quarterly out
of the funds of the Corporation legally available for the payment of
dividends. Such dividends shall be cumulative from the date of original
issue of such shares and shall be payable, when, as and if declared by the
Board, on March 1, June 1, September 1 and December 1 of each year,
commencing September 1, 1991. Each such dividend shall be paid to the
holders of record of shares of this Series as they appear on the stock
register of the Corporation on such record date, not exceeding 30 days
preceding the payment date thereof, as shall be fixed by the Board.
Dividends on account of arrears for any past quarters may be declared and
paid at any time, without reference to any regular dividend payment date,
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board.
(2) No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
preferred stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other class or series
of preferred stock of the Corporation ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of dividends
declared per share on this Series and such other preferred stock shall in
all cases bear to each other the same ratio that accrued dividends per
share on the shares of this Series and such other preferred stock bear to
each other. Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on this Series which may be in arrears.
(3) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in paragraph (2) of this Section (b)) shall be declared or paid or
set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
this Series as to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the Corporation ranking junior to or on a parity
with this Series as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative dividends on
all outstanding shares of this Series shall have been paid for all past
dividend payment periods.
(4) Dividends payable on this Series for any period, including the
period from the original issue of such shares until September 1, 1991,
shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
E-1
<PAGE>
(c) REDEMPTION.
(1) The shares of this Series shall not be redeemable prior to June 1,
1996. On and after June 1, 1996, the Corporation, at its option, may redeem
shares of this Series, as a whole or in part, at any time or from time to
time, at a redemption price per share as follows:
If redeemed during the twelve-month period beginning June 1, 1996 --
$105.060 per share
If redeemed during the twelve-month period beginning June 1, 1997 --
$104.048 per share
If redeemed during the twelve-month period beginning June 1, 1998 --
$103.036 per share
If redeemed during the twelve-month period beginning June 1, 1999 --
$102.024 per share
If redeemed during the twelve-month period beginning June 1, 2000 --
$101.012 per share
If redeemed at any time from and after June 1, 2001 -- $100.000 per
share
plus, in each case, accrued and unpaid dividends thereon to the date fixed
for redemption.
(2) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board and the shares to be redeemed shall be determined
by lot or pro rata as may be determined by the Board or by any other method
as may be determined by the Board in its sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (i) the redemption date; (ii)
the number of shares of this Series to be redeemed and, if fewer than all
the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption price; (iv)
the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (v) that dividends on
the shares to be redeemed will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of this Series so called for redemption shall cease to accrue, and
said shares shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares
so redeemed (properly endorsed or assigned for transfer, if the Board shall
so require and the notice shall so state), such shares shall be redeemed by
the Corporation at the aforesaid redemption price. In case fewer than all
the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost
to the holder thereof.
(5) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on this Series are in arrears, no shares of this Series shall
be redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of this Series.
(d) LIQUIDATION RIGHTS.
(1) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be entitled to
receive and be paid out of the assets of the Corporation available for
distribution to its stockholders, before any payment or distribution shall
be made on the Common Stock or on any other class of stock ranking junior
to the shares of this Series upon liquidation, the amount of $100 per
share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution.
E-2
<PAGE>
(2) Neither the sale of all or substantially all the property or
business of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the Corporation, shall
be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purposes of this Section (d).
(3) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section (d), the holders
of this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
(4) In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any dissolution,
liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (1) of this Section (d), no such
distribution shall be made on account of any shares of any other class or
series of Preferred Stock ranking on a parity with the shares of this
Series upon such dissolution, liquidation or winding up unless
proportionate distributive amounts shall be paid on account of the shares
of this Series, ratably, in proportion to the full distributable amounts
for which holders of all such parity shares are respectively entitled upon
such dissolution, liquidation or winding up.
(e) CONVERSION OR EXCHANGE. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares for
shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
(f) VOTING. The shares of this Series shall not have any voting powers,
either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series at the time outstanding,
given in person or by proxy, either in writing or by a vote at a meeting
called for the purpose at which the holders of shares of this Series shall
vote together as a separate class, shall be necessary for authorizing,
effecting or validating the amendment, alteration or repeal of any of the
provisions of the Articles of Incorporation or of any certificate
amendatory thereof or supplemental thereto (including any Certificate of
the Voting Powers, Designations, Preferences and Relative, Participating,
Optional or Other Special Rights, and the Qualifications, Limitations or
Restrictions thereof, or any similar document relating to any series of
Preferred Stock) which would adversely affect the preferences, rights,
powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series and all other series of
Preferred Stock ranking on a parity with shares of this Series, either as
to dividends or upon liquidation, at the time outstanding, given in person
or by proxy, either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of this Series and such other series
of Preferred Stock shall vote together as a single class without regard to
series, shall be necessary for authorizing, effecting, increasing or
validating the creation, authorization or issue of any shares of any class
of stock of the Corporation ranking prior to the shares of this Series as
to dividends or upon liquidation, or the reclassification of any authorized
stock of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares.
(3) If, at the time of any annual meeting of stockholders for the
election of directors, a default in preference dividends on any series of
the Preferred Stock or any other class or series of preferred stock of the
Corporation (other than the Corporation's Series II 6 1/2% Cumulative
Convertible Preferred Stock (the "Series II Preferred") and any other class
or series of the Corporation's preferred stock expressly entitled to elect
additional directors to the Board by a vote separate and distinct from the
vote provided for in this paragraph (3) ("Voting Preferred")) shall exist,
the number of directors constituting the Board shall be increased by two
(without duplication of any increase made pursuant to the terms of any
other class or series of the Corporation's preferred stock other than the
Series II Preferred and any Voting Preferred) and the holders of the
Corporation's preferred stock of all classes and series (other than the
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Series II Preferred and any such Voting Preferred) shall have the right at
such meeting, voting together as a single class without regard to class or
series, to the exclusion of the holders of Common Stock, the Series II
Preferred and the Voting Preferred, to elect two directors of the
Corporation to fill such newly created directorships. Such right shall
continue until there are no dividends in arrears upon shares of any class
or series of the Corporation's preferred stock ranking prior to or on a
parity with shares of this Series as to dividends (other than the Series II
Preferred and any Voting Preferred). Each director elected by the holders
of shares of any series of the Preferred Stock or any other class or series
of the Corporation's preferred stock in an election provided for by this
paragraph (3) (herein called a "Preferred Director") shall continue to
serve as such director for the full term for which he shall have been
elected, notwithstanding that prior to the end of such term a default in
preference dividends shall cease to exist. Any Preferred Director may be
removed by, and shall not be removed except by, the vote of the holders of
record of the outstanding shares of the Corporation's preferred stock
entitled to have originally voted for such director's election, voting
together as a single class without regard to class or series, at a meeting
of the stockholders, or of the holders of shares of the Corporation's
preferred stock, called for that purpose. So long as a default in any
preference dividends on any series of the Preferred Stock or any other
class or series of preferred stock of the Corporation shall exist (other
then the Series II Preferred and any Voting Preferred) (A) any vacancy in
the office of a Preferred Director may be filled (except as provided in the
following clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case of
the removal of any Preferred Director, the vacancy may be filled by the
vote of the holders of the outstanding shares of the Corporation's
preferred stock entitled to have originally voted for the removed
director's election, voting together as a single class without regard to
class or series, at the same meeting at which such removal shall be voted.
Each director appointed as aforesaid shall be deemed for all purposes
hereto to be a Preferred Director. Whenever the term of office of the
Preferred Directors shall end and a default in preference dividends shall
no longer exist, the number of directors constituting the Board shall be
reduced by two. For purposes hereof, a "default in preference dividends" on
any series of the Preferred Stock or any other class or series of preferred
stock of the Corporation shall be deemed to have occurred whenever the
amount of accrued dividends upon such class or series of the Corporation's
preferred stock shall be equivalent to six full quarterly dividends or
more, and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all accrued dividends on all such shares
of the Corporation's preferred stock of each and every series then
outstanding (other than the Series II Preferred, any Voting Preferred or
shares of any class or series ranking junior to shares of this Series as to
dividends) shall have been paid to the end of the last preceding quarterly
dividend period.
(g) REACQUIRED SHARES. Shares of this Series which have been issued and
reacquired through redemption or purchase shall, upon compliance with an
applicable provision of the Rhode Island Business Corporation Act, have the
status of authorized and unissued shares of Preferred Stock and may be reissued,
but only as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board.
(h) RELATION TO EXISTING PREFERRED CLASSES OF STOCK. Shares of this Series
are equal in rank and preference with all other series of the Preferred Stock
outstanding on the date of original issue of the shares of this Series and the
Preferred Stock with Cumulative and Adjustable Dividends, $20.00 par value, and
are senior in rank and preference to the Common Stock and the Cumulative
Participating Junior Preferred Stock of the Corporation.
(i) RELATION TO OTHER PREFERRED CLASSES OF STOCK. For purposes of this
resolution, any stock of any class or classes of the Corporation shall be deemed
to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to
the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of this Series;
(2) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or sinking fund
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provisions, if any, be different from those of this Series, if the holders
of such stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one over the
other, as between the holders of such stock and the holders of shares of
this Series; and
(3) junior to the shares of this Series, either as to dividends or
upon liquidation, if such class shall be Common Stock or if the holders of
shares of this Series shall be entitled to receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the holders
of shares of such class or classes.
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EXHIBIT F
FLEET FINANCIAL GROUP, INC.
SERIES IV 9.375% PERPETUAL PREFERRED STOCK
(a) DESIGNATION. The designation of the series of Preferred Stock shall be
"Series IV 9.375% Perpetual Preferred Stock" (hereinafter called this "Series")
and the number of shares constituting this Series is One Million (1,000,000).
(b) DIVIDEND RATE.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 9.375% per annum computed on the basis of an
issue price thereof of $100 per share, and no more, payable quarterly out
of the funds of the Corporation legally available for the payment of
dividends. Such dividends shall be cumulative from the date of original
issue of such shares and shall be payable, when, as and if declared by the
Board, on March 1, June 1, September 1 and December 1 of each year,
commencing March 1, 1992. Each such dividend shall be paid to the holders
of record of shares of this Series as they appear on the stock register of
the Corporation on such record date, not exceeding 30 days preceding the
payment date thereof, as shall be fixed by the Board. Dividends on account
of arrears for any past quarters may be declared and paid at any time,
without reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board.
(2) No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
preferred stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other class or series
of preferred stock of the Corporation ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of dividends
declared per share on this Series and such other preferred stock shall in
all cases bear to each other the same ratio that accrued dividends per
share on the shares of this Series and such other preferred stock bear to
each other. Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on this Series which may be in arrears.
(3) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in paragraph (2) of this Section (b)) shall be declared or paid or
set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
this Series as to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the Corporation ranking junior to or on a parity
with this Series as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative dividends on
all outstanding shares of this Series shall have been paid for all past
dividend payment periods.
(4) Dividends payable on this Series for any period, including the
period from the original issue of such shares until March 1, 1992, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
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(c) REDEMPTION.
(1) The shares of this Series shall not be redeemable prior to
December 1, 1996. On and after December 1, 1996, the Corporation, at its
option, may redeem shares of this Series, in whole or in part, at any time
or from time to time, at a redemption price of $100 per share, plus accrued
and unpaid dividends thereon to the date fixed for redemption.
(2) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board and the shares to be redeemed shall be determined
by lot or pro rata as may be determined by the Board or by any other method
as may be determined by the Board in its sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (i) the redemption date; (ii)
the number of shares of this Series to be redeemed and, if fewer than all
the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption price; (iv)
the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (v) that dividends on
the shares to be redeemed will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of this Series so called for redemption shall cease to accrue, and
said shares shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares
so redeemed (properly endorsed or assigned for transfer, if the Board shall
so require and the notice shall so state), such shares shall be redeemed by
the Corporation at the aforesaid redemption price. In case fewer than all
the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost
to the holder thereof.
(5) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on this Series are in arrears, no shares of this Series shall
be redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of this Series.
(d) LIQUIDATION RIGHTS.
(1) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be entitled to
receive and be paid out of the assets of the Corporation available for
distribution to its stockholders, before any payment or distribution shall
be made on the Common Stock or on any other class of stock ranking junior
to the shares of this Series upon liquidation, the amount of $100 per
share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution.
(2) Neither the sale of all or substantially all the property or
business of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the Corporation, shall
be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purposes of this Section (d).
(3) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section (d), the holders
of this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
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(4) In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any dissolution,
liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (1) of this Section (d), no such
distribution shall be made on account of any shares of any other class or
series of Preferred Stock ranking on a parity with the shares of this
Series upon such dissolution, liquidation or winding up unless
proportionate distributive amounts shall be paid on account of the shares
of this Series, ratably, in proportion to the full distributable amounts
for which holders of all such parity shares are respectively entitled upon
such dissolution, liquidation or winding up.
(e) CONVERSION OR EXCHANGE. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares for
shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
(f) VOTING. The shares of this Series shall not have any voting powers,
either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series at the time outstanding,
given in person or by proxy, either in writing or by a vote at a meeting
called for the purpose at which the holders of shares of this Series shall
vote together as a separate class, shall be necessary for authorizing,
effecting or validating the amendment, alteration or repeal of any of the
provisions of the Articles of Incorporation or of any certificate
amendatory thereof or supplemental thereto (including any Certificate of
the Voting Powers, Designations, Preferences and Relative, Participating,
Optional or Other Special Rights, and the Qualifications, Limitations or
Restrictions thereof, or any similar document relating to any series of
Preferred Stock) which would adversely affect the preferences, rights,
powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series and all other series of
Preferred Stock ranking on a parity with shares of this Series, either as
to dividends or upon liquidation, at the time outstanding, given in person
or by proxy, either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of this Series and such other series
of Preferred Stock shall vote together as a single class without regard to
series, shall be necessary for authorizing, effecting, increasing or
validating the creation, authorization or issue of any shares of any class
of stock of the Corporation ranking prior to the shares of this Series as
to dividends or upon liquidation, or the reclassification of any authorized
stock of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares.
(3) If, at the time of any annual meeting of stockholders for the
election of directors, a default in preference dividends on any series of
the Preferred Stock or any other class or series of preferred stock of the
Corporation (other than the Corporation's Series II 6 1/2% Cumulative
Convertible Preferred Stock (the "Series II Preferred") and any other class
or series of the Corporation's preferred stock expressly entitled to elect
additional directors to the Board by a vote separate and distinct from the
vote provided for in this paragraph (3) ("Voting Preferred")) shall exist,
the number of directors constituting the Board shall be increased by two
(without duplication of any increase made pursuant to the terms of any
other class or series of the Corporation's preferred stock other than the
Series II Preferred and any Voting Preferred) and the holders of the
Corporation's preferred stock of all classes and series (other than the
Series II Preferred and any such Voting Preferred) shall have the right at
such meeting, voting together as a single class without regard to class or
series, to the exclusion of the holders of Common Stock, the Series II
Preferred and the Voting Preferred, to elect two directors of the
Corporation to fill such newly created directorships. Such right shall
continue until there are no dividends in arrears upon shares of any class
or series of the Corporation's preferred stock ranking prior to or on a
parity with shares of this Series as to dividends (other than the Series II
Preferred and any Voting Preferred). Each director elected by the holders
of shares of any series of the Preferred Stock or any other class or series
of the Corporation's preferred stock in an election provided for by this
paragraph (3) (herein called a "Preferred Director")
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shall continue to serve as such director for the full term for which he
shall have been elected, notwithstanding that prior to the end of such term
a default in preference dividends shall cease to exist. Any Preferred
Director may be removed by, and shall not be removed except by, the vote of
the holders of record of the outstanding shares of the Corporation's
preferred stock entitled to have originally voted for such director's
election, voting together as a single class without regard to class or
series, at a meeting of the stockholders, or of the holders of shares of
the Corporation's preferred stock, called for that purpose. So long as a
default in any preference dividends on any series of the Preferred Stock or
any other class or series of preferred stock of the Corporation shall exist
(other than the Series II Preferred and any Voting Preferred) (A) any
vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (B)) by an instrument in writing signed by
the remaining Preferred Director and filed with the Corporation and (B) in
the case of the removal of any Preferred Director, the vacancy may be
filled by the vote of the holders of the outstanding shares of the
Corporation's preferred stock entitled to have originally voted for the
removed director's election, voting together as a single class without
regard to class or series, at the same meeting at which such removal shall
be voted. Each director appointed as aforesaid shall be deemed for all
purposes hereto to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a
default in preference dividends shall no longer exist, the number of
directors constituting the Board shall be reduced by two. For purposes
hereof, a "default in preference dividends" on any series of the Preferred
Stock or any other class or series of preferred stock of the Corporation
shall be deemed to have occurred whenever the amount of accrued dividends
upon such class or series of the Corporation's preferred stock shall be
equivalent to six full quarterly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all such shares of the Corporation's
preferred stock of each and every series then outstanding (other than the
Series II Preferred, any Voting Preferred or shares of any class or series
ranking junior to shares of this Series as to dividends) shall have been
paid to the end of the last preceding quarterly dividend period.
(g) REACQUIRED SHARES. Shares of this Series which have been issued and
reacquired through redemption or purchase shall, upon compliance with an
applicable provision of the Rhode Island Business Corporation Act, have the
status of authorized and unissued shares of Preferred Stock and may be reissued
but only as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board.
(h) RELATION TO EXISTING PREFERRED CLASSES OF STOCK. Shares of this Series
are equal in rank and preference with all other series of the Preferred Stock
outstanding on the date of original issue of the shares of this Series and the
Preferred Stock with Cumulative and Adjustable Dividends, $20.00 par value, and
are senior in rank and preference to the Common Stock and the Cumulative
Participating Junior Preferred Stock of the Corporation.
(i) RELATION TO OTHER PREFERRED CLASSES OF STOCK. For purposes of this
resolution, any stock of any class or classes of the Corporation shall be deemed
to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to
the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of this Series;
(2) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or sinking fund provisions,
if any, be different from those of this Series, if the holders of such
stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one over the
other, as between the holders of such stock and the holders of shares of
this Series; and
(3) junior to the shares of this Series, either as to dividends or
upon liquidation, if such class shall be Common Stock or if the holders of
shares of this Series shall be entitled to receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the holders
of shares of such class or classes.
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EXHIBIT G
FLEET FINANCIAL GROUP, INC.
DUAL CONVERTIBLE PREFERRED STOCK
(a) DESIGNATION. The designation of this series of Preferred Stock created
by this resolution shall be "Dual Convertible Preferred Stock" (the "Dual
Convertible Preferred Stock") consisting of 1,415,000 shares. The stated value
of the Dual Convertible Preferred Stock shall be $200 per share.
(b) RANK. The Dual Convertible Preferred Stock shall, with respect to
dividend rights and rights on liquidation, winding up and dissolution, rank
prior to the Common Stock, par value $1.00 per share (the "Common Stock"), of
the Corporation. (All equity securities of the Corporation to which the Dual
Convertible Preferred Stock ranks prior with respect to dividend rights and
rights on liquidation, winding up and dissolution, including the Common Stock,
are collectively referred to herein as the "Junior Securities", all equity
securities of the Corporation with which the Dual Convertible Preferred Stock
ranks on a parity with respect to dividend rights and rights on liquidation,
winding up and dissolution are collectively referred to herein as the "Parity
Securities" and all equity securities of the Corporation to which the Dual
Convertible Preferred Stock ranks junior, whether with respect to dividends or
upon liquidation, dissolution, winding-up or otherwise, are collectively
referred to herein as the "Senior Securities.") The Dual Convertible Preferred
Stock shall be subject to the creation of Junior Securities, Parity Securities
and Senior Securities, subject, in the case of Senior Securities, to obtaining
the approval of the holders of the shares of the Dual Convertible Preferred
Stock in accordance with paragraph (h).
(c) DIVIDENDS. (i) The holders of the shares of Dual Convertible Preferred
Stock shall be entitled to receive, out of funds legally available for the
payment of dividends, cumulative dividends in an amount equal to 50% of the
dividends declared on the common stock, par value $.01 per share ("Holding
Common Stock"), of Fleet/Norstar Holding Company, Inc., a Rhode Island
corporation ("Holding"), and its successor or assign; provided, however, that
dividends shall not become payable on the shares of the Dual Convertible
Preferred Stock until an aggregate of $15 million of dividends have been
declared by Holding and shall only become payable to the extent of dividends
declared by Holding in excess of such amount; and, provided further, that the
amount of such dividends shall be subject to reduction in accordance with
paragraph (f) (iv); and, provided further, that dividends shall not become
payable on the shares of the Dual Convertible Preferred Stock as a result of the
declaration of the Dividend Note (as hereinafter defined) or other amounts
payable as dividends by Holding to the Corporation pursuant to the Tax
Allocation Agreement (as hereinafter defined). Such dividends shall be payable
from time to time as declared by the Board (each of such dates being a "dividend
payment date"), in preference to dividends on the Junior Securities. Such
dividends shall be paid to the holders of record at the close of business on the
tenth business day immediately preceding each dividend payment date (each of
such dates being a "dividend payment record date"). Each of such dividends shall
be fully cumulative and shall accrue without interest, until paid.
(ii) All dividends paid with respect to shares of the Dual Convertible
Preferred Stock pursuant to paragraph (c)(i) shall be paid pro rata to the
holders entitled thereto.
(iii) No full dividends shall be declared by the Board of Directors or paid
or set apart for payment by the Corporation on any Parity Securities for any
period unless full cumulative accrued dividends have been or contemporaneously
are declared and paid or declared and a sum set apart sufficient for such
payment on the Dual Convertible Preferred Stock. If any dividends are not paid
in full upon the shares of the Dual Convertible Preferred Stock and any other
Parity Securities, all dividends declared upon shares of the Dual Convertible
Preferred Stock and any other Parity Securities shall be declared pro rata so
that the amount of dividends declared per share of the Dual Convertible
Preferred Stock and such Parity Securities shall in all cases bear to each other
the same ratio that accrued dividends per share on the Dual Convertible
Preferred Stock and such Parity Securities bear to each other. No interest, or
sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on the Dual Convertible Preferred Stock or any other Parity
Securities which may be in arrears. Any dividend not paid pursuant to paragraph
(c)(i) hereof or this
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paragraph (c)(iii) shall be fully cumulative and shall accrue (whether or not
declared), without interest, as set forth in paragraph (c)(i) hereof.
(iv) (A) Holders of shares of the Dual Convertible Preferred Stock shall be
entitled to receive the dividends provided for in paragraph (c)(i) hereof in
preference to and in priority over any dividends upon any of the Junior
Securities.
(B) So long as any shares of the Dual Convertible Preferred Stock are
outstanding, the Board of Directors shall not declare, and the Corporation shall
not pay or set apart for payment, any dividend on any of the Junior Securities
or make any payment on account of, or set apart for payment money for a sinking
or other similar fund for, the repurchase, redemption or other retirement of,
any of the Junior Securities or Parity Securities or any warrants, rights or
options exercisable for or convertible into any of the Junior Securities or
Parity Securities, or make any distribution in respect of the Junior Securities,
either directly or indirectly, and whether in cash, obligations or shares of the
Corporation or other property (other than distributions or dividends in Junior
Securities to the holders of Junior Securities), and shall not permit any
corporation or other entity directly or indirectly controlled by the Corporation
to purchase or redeem any of the Junior Securities or Parity Securities or any
warrants, rights, calls or options exercisable for or convertible into any of
the Junior Securities or Parity Securities unless prior to or concurrently with
such declaration, payment, setting apart for payment, repurchase, redemption or
other retirement or distribution, as the case may be, all accrued and unpaid
dividends on shares of the Dual Convertible Preferred Stock not paid on the
dates provided for in paragraph (c) (i) hereof shall have been or be paid;
provided, however, that the foregoing restriction shall not prohibit the
Corporation from redeeming the rights outstanding under that certain Rights
Agreement dated as of November 21, 1990, as amended, between the Corporation and
Fleet National Bank, for a redemption price not in excess of $.01 per right.
(d) PAYMENT IN LIQUIDATION. (i) In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of shares of Dual Convertible Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its shareholders an amount in cash equal to $200
for each share outstanding, plus an amount in cash equal to all accrued but
unpaid dividends thereon to the date of liquidation, dissolution or winding up,
before any payment shall be made or any assets distributed to the holders of any
of the Junior Securities. If the assets of the Corporation are not sufficient to
pay in full the liquidation payments payable to the holders of outstanding
shares of the Dual Convertible Preferred Stock and any Parity Securities, then
the holders of all such shares shall share ratably in such distribution of
assets in accordance with the amount which would be payable on such distribution
if the amounts to which the holders of outstanding shares of Dual Convertible
Preferred Stock and the holders of outstanding shares of such Parity Securities
are entitled were paid in full.
(ii) For the purposes of this paragraph (d), neither the voluntary sale,
conveyance, lease, exchange or transfer (for cash, shares of stock, securities
or other consideration) of all or substantially all of the property or assets of
the Corporation nor the consolidation or merger of the Corporation with or into
one or more other corporations nor the consolidation or merger of one or more
corporations with or into the Corporation shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up.
(e) COMMON STOCK CONVERSION. (i) Upon the terms and in the manner set
forth in this paragraph (e) and subject to the provisions for adjustment
contained in paragraph (e) (vii), (A) the shares of the Dual Convertible
Preferred Stock shall be convertible, in whole, but not in part, at the option
of the holders thereof, at any time after the date that is one year after the
Issue Date (as hereinafter defined) and (B) each share of the Dual Convertible
Preferred Stock shall be convertible, from time to time in part, after the date
that is ten years after the Issue Date, or such earlier date as provided in
paragraph (e)(ii), in either case, upon surrender to the Corporation of the
certificates for the shares to be converted, into a number of fully paid and
nonassessable shares of Common Stock equal to the aggregate stated value of the
Dual Convertible Preferred Stock to be converted divided by a conversion price
(the "Conversion Price") of $17.65. As used herein, the term "Issue Date" shall
mean the date of initial issuance of the Dual Convertible Preferred Stock.
(ii) If, prior to the date that is one year after the Issue Date, there
occurs a sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the property
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or assets of the Corporation or a consolidation or merger of the Corporation
with or into another corporation in which the shares of Common Stock are
converted into cash, assets or securities (other than shares of Common Stock
where the Corporation is the surviving corporation), the time when the
conversion rights of holders of shares of Dual Convertible Preferred Stock into
Common Stock become effective shall be accelerated and such conversion rights
shall be effective at and after a time at least 20 business days prior to the
consummation of such transaction.
(iii) In order to convert shares of the Dual Convertible Preferred Stock
into Common Stock, (x) if such shares are converted in whole, but not in part,
pursuant to paragraph (e)(i)(A) above, there shall be delivered to the
Corporation written evidence reasonably satisfactory to it that the holders of a
majority of the shares of Dual Convertible Preferred Stock have elected to
convert the Dual Convertible Preferred Stock into Common Stock (the "Common
Stock Conversion Election"), and (y) if such shares are converted in part, the
holder thereof shall deliver a properly completed and duly executed written
notice of election to convert specifying the number (in whole shares) of the
shares of the Dual Convertible Preferred Stock to be converted. In either case,
each holder of shares of the Dual Convertible Preferred Stock shall (A) deliver
a written notice to the Corporation at its principal office or at the office of
the agency which may be maintained for such purpose (the "Common Stock
Conversion Agent") specifying the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued, (B)
surrender the certificate for such shares of Dual Convertible Preferred Stock to
the Corporation or the Common Stock Conversion Agent, accompanied, if so
required by the Corporation or the Common Stock Conversion Agent, by a written
instrument or instruments of transfer in form reasonably satisfactory to the
Corporation or the Common Stock Conversion Agent duly executed by the holder or
his attorney duly authorized in writing, and (C) pay any transfer or similar tax
required by paragraph (e)(ix).
(iv) (A) A "Common Stock Conversion" shall be deemed to have been effected
at the close of business on the date (the "Common Stock Conversion Date") on
which the Corporation or the Common Stock Conversion Agent shall have received
(x) the written notice of Common Stock Conversion Election or (y) a notice of
election to convert, a surrendered certificate, any required payments
contemplated by paragraph (e) (ix) below, and all other required documents.
Immediately upon conversion, the rights of the holders of converted shares of
Dual Convertible Preferred Stock shall cease and the persons entitled to receive
the shares of Common Stock upon the conversion of such shares of Dual
Convertible Preferred Stock shall be treated for all purposes as having become
the beneficial owners of such shares of Common Stock; provided, however, that
such persons shall be entitled to receive when paid dividends accrued on such
shares of Dual Convertible Preferred Stock to the last preceding dividend
payment date and unpaid as of the date of such conversion. A Common Stock
Conversion shall be at the Conversion Price in effect on such date, unless the
stock transfer books of the Corporation shall be closed on that date, in which
event such person or persons shall be deemed to have become such holder or
holders of record of the Common Stock at the close of business on the next
succeeding day on which such stock transfer books are open, but such conversion
shall be at the Conversion Price in effect on the Common Stock Conversion Date.
(B) As promptly as practicable after the Common Stock Conversion Date, the
Corporation shall deliver or cause to be delivered at the office or agency of
the Common Stock Conversion Agent, to or upon the written order of the holders
of the surrendered shares of Dual Convertible Preferred Stock, a certificate or
certificates representing the number of fully paid and nonassessable shares of
Common Stock, with no personal liability attaching to the ownership thereof,
free of all taxes with respect to the issuance thereof, liens, charges and
security interests and not subject to any preemptive rights, into which such
shares of Dual Convertible Preferred Stock have been converted in accordance
with the provisions of this paragraph (e), and any cash payable in respect of
fractional shares as provided in paragraph (e)(v).
(C) Upon the surrender of a certificate representing shares of Dual
Convertible Preferred Stock that is converted in part, the Corporation shall
issue or cause to be issued for the holder a new certificate representing shares
of Dual Convertible Preferred Stock equal in number to the unconverted portion
of the shares of Dual Convertible Preferred Stock represented by the certificate
so surrendered.
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(v) No fractional shares or scrip representing fractional shares of Common
Stock shall be issued upon the conversion or redemption of any shares of Dual
Convertible Preferred Stock. Instead of any fractional interest in a share of
Common Stock which would otherwise be deliverable upon the conversion or
redemption of a share of Dual Convertible Preferred Stock, the Corporation shall
pay to the holder of such share (a "Fractional Shareholder") an amount in cash
(computed to the nearest cent) equal to the current market price (as defined in
paragraph (e)(vii)(E) below) thereof on the business day next preceding the day
of conversion or redemption. If more than one share shall be surrendered for
conversion or redemption at one time by the same holder, the number of full
shares of Common Stock issuable upon conversion or redemption thereof shall be
computed on the basis of the aggregate stated value of the shares of Dual
Convertible Preferred Stock so surrendered.
(vi) The holders of shares of Dual Convertible Preferred Stock at the
close of business on a dividend payment record date shall be entitled to
receive the dividend payable on such shares on the corresponding dividend
payment date notwithstanding the conversion thereof or the Corporation's
default in payment of the dividend due on such dividend payment date.
(vii) The Conversion Price shall be subject to adjustment as follows:
(A) If the Corporation shall (1) declare or pay a dividend on its
outstanding Common Stock in shares of Common Stock or make a distribution
to holders of its Common Stock in shares of Common Stock, (2) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (3) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (4) issue by reclassification
of its shares of Common Stock other securities of the Corporation, then the
Conversion Price in effect immediately prior thereto shall be adjusted so
that the holder of any shares of Dual Convertible Preferred Stock
thereafter converted shall be entitled to receive the number and kind of
shares of Common Stock or other securities that the holder would have owned
or have been entitled to receive after the happening of any of the events
described above had such shares of Dual Convertible Preferred Stock been
converted immediately prior to the happening of such event or any record
date with respect thereto. An adjustment made pursuant to this paragraph
(e)(vii)(A) shall become effective on the date of the dividend payment,
subdivision, combination or issuance retroactive to the record date with
respect thereto, if any, for such event. Such adjustment shall be made
successively.
(B) If the Corporation shall issue to all holders of its Common Stock
rights, options, warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase shares of Common Stock at a price per
share that is lower than the then current market price per share of Common Stock
(as defined in paragraph (e)(vii)(E) below), then the Conversion Price shall be
adjusted in accordance with the following formula:
(N x P)
-------
AC = C x 0 + (M)
--------------
0 + N
where
<TABLE>
<C> <C> <S>
AC = the adjusted Conversion Price.
C = the current Conversion Price.
0 = the number of shares of Common Stock outstanding on the
record date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Common Stock on the
record date.
</TABLE>
The adjustment shall be made successively whenever any such rights,
options, warrants or convertible or exchangeable securities are issued, and
shall become effective immediately after the record date for the
determination of shareholders entitled to receive the rights, options,
warrants or convertible or exchangeable securities.
(C) Upon the expiration of any rights, options, warrants or
convertible or exchangeable securities issued by the Corporation to all
holders of its Common Stock which caused an adjustment to the
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Conversion Price pursuant to paragraph (e) (vii) (B), if any thereof shall
not have been exercised, then the Conversion Price shall be increased by
the amount of the initial adjustment of the Conversion Price pursuant to
paragraph (e) (vii) (B) in respect of such expired rights, options,
warrants or convertible or exchangeable securities.
(D) If the Corporation shall distribute to all holders of its
outstanding Common Stock any shares of capital stock of the Corporation
(other than Common Stock) or evidences of indebtedness or assets (excluding
ordinary cash dividends and dividends or distributions referred to in
paragraphs (e) (vii) (A) and (B) above) or rights or warrants to subscribe
for or purchase any of its securities (excluding those referred to in
paragraph (e) (vii) (B) above), (any of the foregoing being hereinafter in
this paragraph (e) (vii) (D) called the "Securities or Assets"), then in
each such case, unless the Corporation elects to reserve shares or other
units of such Securities or Assets for distribution to the holders of the
Dual Convertible Preferred Stock upon the conversion of the shares of Dual
Convertible Preferred Stock so that any such holder converting shares of
Dual Convertible Preferred Stock will receive upon such conversion, in
addition to the shares of the Common Stock to which such holder is
entitled, the amount and kind of such Securities or Assets which such
holder would have received if such holder had, immediately prior to the
record date for the distribution of the Securities or Assets, converted its
shares of Dual Convertible Preferred Stock into Common Stock, the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to the date of such distribution by a fraction of which the numerator shall
be the current market price per share (as defined in paragraph (e) (vii)
(E) below) of the Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board in good faith) of the
portion of the capital stock or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one share of Common
Stock, and of which the denominator shall be the current market price per
share of the Common Stock on such record date; provided, however, that if
the then fair market value (as so determined) of the portion of the
Securities or Assets so distributed applicable to one share of Common Stock
is equal to or greater than the current market price per share of the
Common Stock on the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of shares
of the Dual Convertible Preferred Stock shall have the right to receive the
amount and kind of Securities and Assets such holder would have received
had such holder converted each such share of the Dual Convertible Preferred
Stock immediately prior to the record date for the distribution of the
Securities or Assets. Such adjustment shall become effective immediately
after the record date for the determination of shareholders entitled to
receive such distribution.
(E) For the purposes of any computation under paragraph (e) (vii), and
for the purposes of paragraphs (e) (v) and (g)(ii), the current market
price per share of Common Stock at any date shall be deemed to be the
average of the daily closing prices for the 20 consecutive trading days
commencing on the 30th trading day prior to the date in question. The
closing price for each day shall be (i) if the Common Stock is listed or
admitted to trading on a national securities exchange, the closing price on
the New York Stock Exchange Consolidated Tape (or any successor composite
tape reporting transactions on national securities exchanges) or, if such a
composite tape shall not be in use or shall not report transactions in the
Common Stock, the last reported sales price regular way on the principal
national securities exchange on which the Common Stock is listed or
admitted to trading (which shall be the national securities exchange on
which the greatest number of shares of Common Stock has been traded during
such 20 consecutive trading days), or, if there is no transaction on any
such day in any such situation, the mean of the bid and asked prices on
such day or, (ii) if the Common Stock is not listed or admitted to trading
on any such exchange, the closing price, if reported, or, if the closing
price is not reported, the average of the closing bid and asked prices as
reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or, (iii) if bid and asked prices for the
Common Stock on each such day shall not have been reported through NASDAQ,
the average of the bid and asked prices for such date as furnished by any
three New York Stock Exchange member firms regularly making a market in the
Common Stock and not affiliated with the Corporation selected for such
purpose by the Board or, (iv) if no such quotations are available, the fair
market value of the Common
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<PAGE>
Stock as determined by a New York Stock Exchange member firm regularly
making a market in the Common Stock selected for such purpose by the Board.
(F) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of
such price; provided, however, that any adjustments which by reason of this
paragraph (e) (vii) (F) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this paragraph (e) (vii) shall be made to the nearest
one hundredth of a cent or to the nearest one-hundredth of a share, as the
case may be.
(G) If the Corporation shall be a party to any transaction, including
without limitation a merger, consolidation, sale of all or substantially
all of the Corporation's assets, liquidation or recapitalization of the
Common Stock (each of the foregoing being referred to as a "Transaction"),
in each case (except in the case of a Common Stock Fundamental Change (as
hereinafter defined)) as a result of which shares of Common Stock shall be
converted into the right to receive stock, securities or other property
(including cash or any combination thereof), in addition to the right to
exchange the Dual Convertible Preferred Stock for Holding Common Stock,
which shall survive the consummation of any such Transaction, each share of
Dual Convertible Preferred Stock shall thereafter be convertible into the
kind and amount of shares of stock and other securities and property
receivable (including cash) upon the consummation of such Transaction by a
holder of that number of shares of Common Stock into which one share of
Dual Convertible Preferred Stock was convertible immediately prior to such
Transaction. The Corporation shall not be a party to any Transaction unless
the terms of such Transaction are consistent with the provisions of this
paragraph (e) (vii) (G) and it shall not consent or agree to the occurrence
of any Transaction until the corporation has entered into an agreement with
the successor or purchasing entity, as the case may be, for the benefit of
the holders of the Dual Convertible Preferred Stock, which shall contain
provisions (i) enabling the holders of the Dual Convertible Preferred Stock
to convert into the consideration received by holders of Common Stock at
the Conversion Price immediately after such Transaction and (ii)
acknowledging the right of the Dual Convertible Preferred Stock to be
exchanged for Holding Common Stock and assuming any obligations with
respect thereto. The provisions of this paragraph (e) (vii) (G) shall
similarly apply to successive Transactions.
(H) In the event of a Common Stock Fundamental Change, in addition to
the right to exchange the Dual Convertible Preferred Stock for Holding
Common Stock, which shall survive the consummation of any such Common Stock
Fundamental Change, each share of Dual Convertible Preferred Stock shall be
convertible into common stock of the kind received by holders of Common
Stock as the result of such Common Stock Fundamental Change. The Conversion
Price immediately following such Common Stock Fundamental Change shall be
the Conversion Price in effect immediately prior to such Common Stock
Fundamental Change multiplied by a fraction, the numerator of which is the
Purchaser Stock Price (as hereinafter defined) and the denominator of which
is the Applicable Price (as hereinafter defined). The Corporation shall not
consent or agree to the occurrence of any Common Stock Fundamental Change
until the Corporation has entered into an agreement with the successor or
purchasing entity, as the case may be, for the benefit of the holders of
the Dual Convertible Preferred Stock, which shall contain provisions (i)
enabling the holders of the Dual Convertible Preferred Stock to convert
into the consideration received by holders of Common Stock at the
Conversion Price immediately after such Fundamental Change and (ii)
acknowledging the right of the Dual Convertible Preferred Stock to be
exchanged for Holding Common Stock and assuming any obligations with
respect thereto. The provisions of this paragraph (e)(vii)(H) shall
similarly apply to successive Common Stock Fundamental Changes.
(I) As used herein:
(1) The term "Applicable Price" means the current market price for
one share of the Common Stock (determined in accordance with paragraph
(e)(vii)(E)) on the record date for the determination of the holders of
Common Stock entitled to receive common stock in connection with such
Common Stock Fundamental Change, or, if there is no such record date, on
the date upon which the holders of Common Stock shall have the right to
receive such common stock.
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<PAGE>
(2) The term "Common Stock Fundamental Change" shall mean the
occurrence of any transaction or event in connection with which all or
substantially all the Common Stock shall be exchanged for, converted
into, acquired for or shall constitute solely the right to receive
common stock that, for the ten consecutive trading days immediately
prior to such Common Stock Fundamental Change, has been admitted for
listing on a national securities exchange or quoted on the National
Market System of NASDAQ (whether by means of an exchange order,
liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise).
(3) The term "Purchaser Stock Price" shall mean, with respect to
any Common Stock Fundamental Change, the current market price for one
share of the common stock received by holders of Common Stock in such
Common Stock Fundamental Change (determined in accordance with paragraph
(e)(vii)(E) as if such paragraph were applicable to such common stock)
on the record date for the determination of the holders of Common Stock
entitled to receive such common stock or, if there is no such record
date, on the date upon which the holders of Common Stock shall have the
right to receive such common stock.
(J) For the purposes of this paragraph (e)(vii) and paragraph (e)(x),
the term "shares of Common Stock" shall mean (i) the class of stock
designated as the Common Stock of the Corporation at the date hereof or
(ii) any other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par value,
or from no par value to par value. If at any time, as a result of an
adjustment made pursuant to paragraphs (e) (vii) (A), (D), (G) or (H)
above, the holders of Dual Convertible Preferred Stock shall become
entitled to receive any securities other than shares of Common Stock,
thereafter the number of such other securities so issuable upon conversion
of the shares of Dual Convertible Preferred Stock shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the shares of Dual
Convertible Preferred Stock contained in this paragraph (e) (vii).
(K) Notwithstanding the foregoing, in any case which this paragraph
(e) (vii) provides that an adjustment shall become effective immediately
after a record date for an event, the Corporation may defer until the
occurrence of such event (i) issuing to the holder of any share of Dual
Convertible Preferred Stock converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable
upon such conversion before giving effect to such adjustment and (ii)
paying to such holder any amount in cash in lieu of any fraction pursuant
to paragraph (e)(v).
(L) If the Corporation shall take any action affecting the Common
Stock, other than action described in this paragraph (e) (vii), which in
the opinion of the Board would materially adversely affect the conversion
rights of the holders of the shares of Dual Convertible Preferred Stock,
the Conversion Price for the Dual Convertible Preferred Stock may be
adjusted, to the extent permitted by law, in such manner, if any, and at
such time, as the Board may determine in good faith to be equitable in the
circumstances. Failure of the Board to provide for any such adjustment
prior to the effective date of any such action by the Corporation affecting
the Common Stock shall be evidence that such Board has determined that it
is equitable to make no adjustments in the circumstances.
(viii) Whenever the Conversion Price is adjusted as herein provided,
the Chief Financial Officer of the Corporation shall compute the adjusted
Conversion Price in accordance with the foregoing provisions and shall
prepare a certificate setting forth such adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based.
A copy of such certificate shall be filed promptly with the Common Stock
Conversion Agent. Promptly after delivery of such certificate, the
Corporation shall prepare a notice of such adjustment of the Conversion
Price setting forth the adjusted Conversion Price and the date on which
such adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Dual
Convertible Preferred Stock at his last address as shown on the stock books
of the Corporation.
(ix) The Corporation will pay any and all documentary, stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of shares of Common Stock on the conversion of shares of Dual Convertible
Preferred Stock pursuant to this paragraph (e); provided, however, that the
Corporation shall
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<PAGE>
not be required to pay any tax which may be payable in respect of any
registration or transfer involved in the issue or delivery of shares of
Common Stock in a name other than that of the registered holder of Dual
Convertible Preferred Stock converted or to be converted, and no such issue
or delivery shall be made unless and until the person requesting such issue
has paid to the Corporation the amount of any such tax or has established,
to the satisfaction of the Corporation, that such tax has been paid.
(x) (A) The Corporation shall at all times reserve and keep available,
free from all liens, charges and security interests and not subject to any
preemptive rights, out of the aggregate of its authorized but unissued
Common Stock or its issued Common Stock held in its treasury, or both, for
the purpose of effecting the conversion of the Dual Convertible Preferred
Stock, the full number of shares of Common Stock then deliverable upon the
conversion of all outstanding shares of the Dual Convertible Preferred
Stock.
(B) Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value (if any) of the Common Stock
issuable upon conversion of the Dual Convertible Preferred Stock, the
Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of such Common Stock at such
adjusted Conversion Price.
(xi) If (A) the Corporation shall declare a dividend on its
outstanding Common Stock (excluding ordinary cash dividends) or make a
distribution to holders of its Common Stock; (B) the Corporation shall
authorize the granting to the holders of the Common Stock of rights,
options, warrants or convertible or exchangeable securities containing the
right to subscribe for or purchase any shares of Common Stock or any of its
securities; (C) there shall be any reclassification of the Common Stock or
any consolidation or merger to which the Corporation is a party and for
which approval of any shareholders of the Corporation is required, or the
sale or transfer of all or substantially all of the assets of the
Corporation; or (D) there shall be any Common Stock Fundamental Change;
then the Corporation shall cause to be mailed to the holders of shares of
the Dual Convertible Preferred Stock at their addresses as shown on the
stock books of the Corporation, as promptly as possible, but at least 15
days, prior to the applicable date hereinafter specified, a notice stating
(l) the date on which a record is to be taken for the purpose of such
dividend or distribution, or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such
dividend or distribution are to be determined or (2) the date on which such
reclassification, consolidation, merger, sale, transfer or Common Stock
Fundamental Change is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger,
sale, transfer or Common Stock Fundamental Change.
(f) HOLDING EXCHANGE. (i) Upon the terms and in the manner set forth in
this paragraph (f), the shares of Dual Convertible Preferred Stock shall be
exchangeable, in whole, but not in part, at the option of the holders thereof,
upon surrender to the Corporation of the certificates representing such shares
of Dual Convertible Preferred Stock, for a number of fully paid and
nonassessable shares of Holding Common Stock equal to 50% of the shares of
Holding Common Stock on a fully diluted basis on the Holding Exchange Date (as
hereinafter defined).
(ii) On the Issue Date, all of the shares of Dual Convertible Preferred
Stock will be issued to one or more limited partnerships (the "Partnerships"),
for which Kohlberg Kravis Roberts & Co. or one of its affiliates acts as sole
general partner. The Partnerships shall distribute all shares of Dual
Convertible Preferred Stock then owned by the Partnerships to the partners
thereof (the "Distribution") upon the earlier to occur of (A) the date of the
Automatic Early Distribution (as hereinafter defined) or (B) the date that is
six years after the Issue Date, unless the Partnerships shall have received the
consent of the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") to an alternative date on which to effect the Distribution
(which shall not be earlier than the date that is four years after the Issue
Date). The Partnerships shall promptly notify the Corporation of the
Distribution.
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(iii) The shares of Dual Convertible Preferred Stock shall be exchangeable
for Holding Common Stock, in whole, but not in part, in accordance with this
paragraph (f), (A) at any time after the Automatic Early Distribution shall have
been effected and before the date that is ten years after the Issue Date, or (B)
from time to time after the date that is (x) four years after the Issue Date or
at any time after such date, if the Partnerships do not own any shares of Dual
Convertible Preferred Stock on any such date and before the date that is ten
years after the Issue Date, or (y) the date that the Distribution shall have
been effected, which shall be six years after the Issue Date unless the
Partnerships shall have received the consent of the Federal Reserve Board to an
alternative date on which to effect the Distribution (which shall not be earlier
than the date that is four years after the Issue Date) and before the date that
is ten years after the Issue Date (the period of time set forth in either clause
(x) or (y) of this paragraph (f)(iii)(B) is referred to herein as the "Exchange
Period").
(iv) At any time and from time to time during the Exchange Period, the
holders of a majority of the shares of the Dual Convertible Preferred Stock
shall have the right to have an independent nationally recognized investment
banking firm render an opinion (an "Appraisal") of the fair price for all the
outstanding shares of Holding Common Stock as if all such shares were to be sold
to a third party in their entirety reflecting a full control premium (the
"Appraised Price"). The fees and expenses of such investment banking firm shall
be paid by the Corporation. The Corporation shall be entitled to reduce the
amount of dividends that would otherwise be payable on the Dual Convertible
Preferred Stock pursuant to paragraph (c) (i) by the amount of such fees and
expenses paid by the Corporation. The investment banking firm that performs each
Appraisal shall be selected by the Corporation but shall be reasonably
acceptable to the holders of a majority of the shares of the Dual Convertible
Preferred Stock. The holders of a majority of the shares of the Dual Convertible
Preferred Stock shall have 30 days to accept or reject the Appraised Price set
by any Appraisal. The Dual Convertible Preferred Stock will become exchangeable
for Holding Common Stock for a period of 90 days commencing on the date that is
six months after the written acceptance by the holders of a majority of the
shares of the Dual Convertible Preferred Stock of the Appraised Price set by an
Appraisal. If the holders of the Dual Convertible Preferred Stock do not elect
to exchange their shares of the Dual Convertible Preferred Stock for Holding
Common Stock during any such 90-day period, in addition to their other rights
hereunder, the holders shall be entitled to have additional Appraisals rendered
and to otherwise comply with the requirements hereof to have the Dual
Convertible Preferred Stock again become exchangeable for Holding Common Stock.
(v) The right to exchange the Dual Convertible Preferred Stock for Holding
Common Stock may also be exercised at any time on or after the 60th day after
the Corporation shall have given notice to the holders of the shares of the Dual
Convertible Preferred Stock that the Corporation's consolidated Tier 1 capital
leverage ratio, based on the rules and regulations of the Federal Reserve Board
as currently in effect (using year-end 1992 standards) as disclosed in any
report of condition filed by the Corporation with any bank regulatory authority,
adjusted to include the Corporation's goodwill existing at the Issue Date, shall
be less than 3%. The Corporation shall give the holders of the shares of the
Dual Convertible Preferred Stock immediate notice if its consolidated Tier 1
capital leverage ratio as reported in any such regulatory filing, adjusted to
include its goodwill existing at the Issue Date, falls below 3%. Prior to the
fifth day after the Partnerships shall have received such notice, unless the
Partnerships shall have received the consent of the Federal Reserve Board to an
extension of such date, the Partnerships shall effect the Distribution with
respect to all shares of Dual Convertible Preferred Stock then owned by the
Partnerships (the "Automatic Early Distribution"). The Corporation shall cause
an Appraisal to be prepared at the Corporation's expense and delivered to the
holders of the shares of the Dual Convertible Preferred Stock within 20 days
after the Corporation's notice of capital deficiency. The holders of a majority
of the shares of the Dual Convertible Preferred Stock shall have 20 days to
accept or reject such Appraisal. If such Appraisal is accepted, the Corporation
may redeem at its option, with the prior approval of the Federal Reserve Board,
the Dual Convertible Preferred Stock in whole, but not in part, for the Gross
Redemption Price, determined and payable in accordance with paragraph (g) below.
(vi) In order to exchange shares of the Dual Convertible Preferred Stock
into Holding Common Stock, there shall be delivered to the Corporation written
evidence reasonably satisfactory to it that the holders of a majority of the
shares of Dual Convertible Preferred Stock have elected to exchange the Dual
Convertible
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Preferred Stock into Holding Common Stock (the "Holding Exchange Election"),
which election shall be binding on all the holders of the shares of the Dual
Convertible Preferred Stock. Each holder of shares of the Dual Convertible
Preferred Stock shall (A) deliver a written notice of the name or names in which
such holder wishes the certificate or certificates for shares of Holding Common
Stock to be issued to the Corporation at its principal office or at the office
of the agency which may be maintained for such purpose (the "Holding Exchange
Agent"), (B) surrender the certificate for such shares of Dual Convertible
Preferred Stock to the Corporation or the Holding Exchange Agent, accompanied,
if so required by the Corporation or the Holding Exchange Agent, by a written
instrument or instruments of transfer in form reasonably satisfactory to the
Corporation or the Holding Exchange Agent duly executed by the holder or his
attorney duly authorized in writing, and (C) pay any transfer or similar tax
required by paragraph (f)(x)(A).
(vii) (A) The "Holding Exchange" shall be deemed to have been effected at
the close of business on the fifth business day after the date (the "Holding
Exchange Date") on which the Corporation shall have received the written notice
of the Holding Exchange Election. Immediately upon exchange, the rights of all
the holders of Dual Convertible Preferred Stock shall cease and the persons
entitled to receive the shares of Holding Common Stock upon the exchange of Dual
Convertible Preferred Stock shall be treated for all purposes as having become
the beneficial owners of such shares of Holding Common Stock; provided, however,
that such persons shall be entitled to receive when paid dividends accrued on
such shares of Dual Convertible Preferred Stock to the last preceding dividend
payment date and unpaid as of the date of such exchange.
(B) As promptly as practicable after the Holding Exchange Date subject to
the provisions of paragraph (f) (x), the Corporation shall deliver or cause to
be delivered at the office or agency of the Holding Exchange Agent, to or upon
the written order of the holders of the surrendered shares of Dual Convertible
Preferred Stock, a certificate or certificates representing the number of fully
paid and nonassessable shares of Holding Common Stock into which such shares of
Dual Convertible Preferred Stock have been exchanged in accordance with the
provisions of this paragraph (f).
(viii) No fractional shares or scrip representing fractional shares of
Holding Common Stock shall be issued upon the exchange of the Dual Convertible
Preferred Stock for Holding Common stock. The Corporation shall cause Holding to
effect a stock split or reverse stock split so that no fractional shares become
deliverable pursuant to the Holding Exchange.
(ix) The holders of shares of Dual Convertible Preferred Stock at the close
of business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares on the corresponding dividend payment date
notwithstanding the exchange thereof or the Corporation's default in payment of
the dividend due on such dividend payment date.
(x) (A) The Corporation will pay any and all documentary, stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of shares of
Holding Common Stock on the exchange of shares of Dual Convertible Preferred
Stock pursuant to this paragraph (f); provided, however, that the Corporation
shall not be required to pay any tax which may be payable in respect of any
registration or transfer involved in the issue or delivery of shares of Holding
Common Stock in a name other than that of the registered holder or Dual
Convertible Preferred Stock exchanged or to be exchanged, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(B) If the Board of Directors of Holding determines in good faith that (i)
the declaration and payment of the dividend note (the "Dividend Note") described
in Section 3 of the Supplemental Tax Allocation Agreement between the
Corporation and Holding, dated the Issue Date (the "Tax Allocation Agreement"),
would cause Holding to be unable to comply with regulatory capital maintenance
requirements and policies then in effect or with safe and sound banking
practices or (ii) Holding will have insufficient cash to pay the Dividend Note,
then the Corporation may condition the issuance of Holding Common Stock to any
holder of the Dual Convertible Preferred Stock upon the receipt of a cash
capital contribution (a "Capital Contribution") from such holder to Holding
concurrently with such issuance equal to the product of a fraction, the
numerator of which equals the number of shares of Holding Common Stock for which
such holder's Dual
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Convertible Preferred Stock may be exchanged and the denominator of which equals
the total number of shares of Holding Common Stock that will be outstanding (on
a fully diluted basis) after all of the shares of Dual Convertible Preferred
Stock have been exchanged, multiplied by the amount of the Dividend Note and, in
such event, the declaration and payment of the Dividend Note to the Corporation
will be conditioned upon Holding's receipt of a Capital Contribution from the
Corporation equal to 50% of the amount of the Dividend Note. Except as provided
in this paragraph (f) (x), the holders of the Dual Convertible Preferred Stock
shall have no obligation to make any capital contribution, including, without
limitation, with respect to the obligations of Holding to the Corporation under
the Tax Allocation Agreement.
(C) The Board of Directors of Holding shall give written notice of its
determination to require a Capital Contribution to each holder of record of the
shares of the Dual Convertible Preferred Stock, which notice shall state the
amount of such holder's required Capital Contribution and the consequences of
failing to make such Capital Contribution. If any holder of the Dual Convertible
Preferred Stock fails to make such holder's Capital Contribution within 90 days
of such notice, the shares of Holding Common Stock for which such holder's
shares of the Dual Convertible Preferred Stock may be exchanged (the "Escrowed
Shares") shall be deposited by the Corporation in escrow with an independent
trustee (the "Trustee") that is not affiliated with the Corporation. The Trustee
shall be empowered and directed to sell such of the Escrowed Shares as will be
sufficient to realize net proceeds (after the payment of the fees and expenses
of the Trustee) equal to such holder's required Capital Contribution, together
with interest on such amount at the prime rate then in effect at the
Corporation's banking subsidiaries commencing on the 90th day after the notice
of such Capital Contribution ("Interest"). The holder of the shares of the Dual
Convertible Preferred Stock to which such Escrowed Shares relate may obtain the
release of such Escrowed Shares from the Trustee at any time prior to the
Trustee's disposition thereof by paying the amount of the Capital Contribution,
together with Interest thereon, to the Trustee. The Trustee shall have the right
to sell such of the Escrowed Shares in a public offering or in one or more
private sales as will result in the receipt of sufficient proceeds, after the
payment of the fees and expenses of the Trustee therefrom, to pay the required
Capital Contribution, together with Interest thereon, with respect to such
Escrowed Shares. The Trustee shall use its best efforts to obtain the highest
price for the Escrowed Shares to be sold. The Trustee shall not be prohibited
from selling, and shall be specifically authorized to sell, any of the Escrowed
Shares to the Corporation provided that the Corporation purchases such shares
for a consideration at least equal to the book value thereof. Upon the receipt
of sufficient proceeds to pay the required Capital Contribution, together with
Interest thereon, the balance of such Escrowed Shares will be released to the
holder of the Dual Convertible Preferred Stock to which such Escrowed Shares
relate in exchange for the Dual Convertible Preferred Stock held by such holder.
(g) OPTIONAL REDEMPTION. (i) The Corporation may redeem at its option,
with the prior approval of the Federal Reserve Board, the Dual Convertible
Preferred Stock, in whole, but not in part, at any time during the period after
the acceptance of any Appraisal by the holders of a majority of the shares of
Dual Convertible Preferred Stock but before the 90-day period following the
acceptance of any Appraisal during which the Dual Convertible Preferred Stock
becomes exchangeable for Holding Common Stock in accordance with paragraph (f)
(iv) or before the Dual Convertible Preferred Stock becomes exchangeable for
Holding Common Stock in accordance with paragraph (f)(v) above (the "Optional
Redemption Period"), at a redemption price equal to 50% of the Appraised Price
(the "Gross Redemption Price"), together with accrued and unpaid dividends
thereon to the date of redemption. The Appraised Price that is applicable to any
Optional Redemption Period shall be the Appraised Price set forth in the
Appraisal, the acceptance of which gave rise to such Optional Redemption Period.
(ii) The Gross Redemption Price shall be reduced by the aggregate of (A)
the aggregate current market price of the shares of Common Stock into which the
Dual Convertible Preferred Stock would then be convertible, regardless of
whether such shares are actually convertible at such time (which current market
price shall be determined in accordance with paragraph (e) (vii) (E) and the
date in question for purposes thereof shall be the date that the Optional
Redemption Notice (as hereinafter defined) is mailed in accordance with
paragraph (g)(iii) below) or, if any Transaction has been effected in which
shares of Common Stock were converted into the right to receive stock,
securities or other property (including cash or any combination thereof) (the
"Transaction Consideration") and the Common Stock is no longer outstand-
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ing, the value of the Transaction Consideration into which the Dual Convertible
Preferred Stock would then be convertible, and (B) the value of the rights to
purchase Common Stock (the "Rights") issued to the Partnerships on the Issue
Date. The value of the Rights shall be determined as follows:
(1) with respect to any portion of the Rights that has been exercised
and the holder of such Rights received Common Stock upon the exorcise
thereof, the value of such Rights shall be equal to the aggregate current
market price of the Common Stock received upon the exercise of the Rights
on the date of exercise less the aggregate exercise price paid for such
Common Stock (which current market price shall be determined in accordance
with paragraph (e) (vii) (E) and the date in question for purposes thereof
shall be the date of exercise);
(2) with respect to any portion of the Rights that has not been
exercised, the value of such Rights shall be equal to the aggregate current
market price of the Common Stock that the holders of such Rights would then
be entitled to receive upon the exercise thereof in their entirety less the
aggregate exercise price that would then be payable upon such exercise
(which current market price shall be determined in accordance with
paragraph (e) (vii) (E) and the date in question for purposes thereof shall
be the date that the Optional Redemption Notice is mailed); and
(3) with respect to any portion of the Rights that has been exercised
and the Corporation exercised its option to purchase such Rights rather
than issue Common Stock upon the exercise thereof, the value of such Rights
shall be equal to the aggregate purchase price received by the holders
thereof upon the Corporation's purchase of such Rights.
The value of the Transaction Consideration shall be determined as follows:
(1) with respect to any portion of the Transaction Consideration that
consists of stock or securities, the value of such stock or securities
shall be equal to the aggregate current market price of such stock or
securities (determined in accordance with paragraph (e) (vii) (E) as if
such paragraph were applicable to such stock or securities and the date in
question for purposes thereof shall be the date that the Optional
Redemption Notice is mailed); and
(2) with respect to any portion of the Transaction Consideration that
consists of other property, the value of such other property shall be equal
to its then aggregate fair market value as determined by the Board in good
faith.
If the Corporation certifies in the Optional Redemption Notice that it must
report gain, and that it will do so on its tax return for the taxable year
of the redemption, that will result in an actual income tax liability or an
actual reduction in income tax refund (or combination thereof) on the
income tax return of the Corporation for the taxable year of the redemption
as a direct result of the actual redemption of the Dual Convertible
Preferred Stock for cash and/or the issuance of Common Stock or debt
securities of the Corporation pursuant to paragraph (g) (i), the Gross
Redemption Price shall be reduced by one-half of the amount of the total
income tax liability actually to be incurred as a result of, and/or the
actual reduction in income tax refund to occur caused by, such redemption,
as will be reported on the income tax return of the Corporation to be filed
for the taxable year of the redemption, including any income tax for which
the Corporation is liable as a result of such reduction. If the Corporation
does not expect to incur an actual tax liability or reduction in refund (or
combination thereof) in the year of the redemption, the Gross Redemption
Price shall be reduced by one-half of the amount determined by the Board of
Directors of the Corporation in good faith, equal to the projected tax
liability to be incurred by the Corporation in future years as a result of
the redemption appropriately discounted to take into account the period of
time before such tax liability will actually be paid by the Corporation.
The Corporation will not provide the certification in the Optional
Redemption Notice unless there is substantial authority that requires gain
to be recognized by the Corporation on the redemption and no substantial
authority supporting the position that gain is not recognized by the
Corporation on the redemption.
If the Corporation subsequently receives a refund of all or any portion of
the taxes paid or has a reduction in the tax liability that resulted in a
reduction of the Gross Redemption Price, the Corporation shall promptly pay
the former holders of the Dual Convertible Preferred Stock their respective
proportionate
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share of 50% of such refund or reduction in tax liability, together with
any interest at the underpayment rate set forth in Section 6621(a) (2) of
the Internal Revenue Code of 1986, as amended. The Gross Redemption Price
reduced by the value of the Rights in accordance with clause (B) above and
any reduction pursuant to the three preceding sentences shall be referred
to herein as the "Net Redemption Price", and further reduced by the
aggregate current market price of the Common Stock or the aggregate value
of the Transaction Consideration in accordance with clause (A) above shall
be referred to herein as the "Balance".
(iii) The Net Redemption Price shall be payable to the holders of the
shares of Dual Convertible Preferred Stock as follows:
(A) certificates representing the number of shares of Common Stock or,
if any Transaction has been effected, certificates representing the number
of shares of stock or securities together with any other property, into
which the Dual Convertible Preferred Stock would then be convertible,
regardless of whether such shares are actually convertible at such time,
and any cash payable in respect of fractional shares as provided in
paragraph (e)(v), shall be delivered to the holders of the Dual Convertible
Preferred Stock in accordance with the procedures for effecting a Common
Stock Conversion; and
(B) the Balance shall be payable, at the Corporation's option, in any
combination of cash or the Corporation's capital and other securities
having a realizable market value (as determined by an independent
nationally recognized investment banking firm selected and paid for by the
Corporation and reasonably acceptable to the holders of at least a majority
of the shares of the Dual Convertible Preferred Stock) equal to the
Balance.
(iv) The Corporation shall have the obligation to redeem, with the prior
approval of the Federal Reserve Board, the Dual Convertible Preferred Stock, in
whole, but not in part, if (A) the Corporation offers to redeem (the "Redemption
Offer") the Dual Convertible Preferred Stock at a redemption price other than
the Gross Redemption Price, which offer, if made after the Distribution shall
have been effected, may only be made during an Optional Redemption Period or
during the period after an Appraisal has been received and prior to the
acceptance or rejection thereof by the holders of the shares of the Dual
Convertible Preferred Stock, and (B) the holders of a majority of the
outstanding shares of the Dual Convertible Preferred Stock shall have elected to
accept the Redemption Offer, which election shall be binding on all the holders
of the shares of the Dual Convertible Preferred Stock. Written notice of every
Redemption Offer shall be given by first class mail, postage prepaid, to each
holder of record of the shares of the Dual Convertible Preferred Stock at such
holder's address as the same appears on the stock register of the Corporation.
Each Redemption Offer shall state: (A) the consideration offered by the
Corporation for all the shares of the Dual Convertible Preferred Stock (the
"Alternative Redemption Price"); (B) the proposed date on and the manner in
which the Alternative Redemption Price would be payable; and (C) the Gross
Redemption Price, the Net Redemption Price and the Balance, together with a
certificate of the Chief Financial Officer of the Corporation setting forth in
reasonable detail the facts upon and the manner in which each was determined.
(v) If the Corporation shall redeem shares of Dual Convertible Preferred
Stock pursuant to this paragraph (g), written notice of such redemption (the
"Optional Redemption Notice") shall be given by first class mail, postage
prepaid, mailed not less than 10 days nor more than 30 days prior to the
redemption date, to each holder of record of the shares of the Dual Convertible
Preferred Stock at such holder's address as the same appears on the stock
register of the Corporation. The Optional Redemption Notice shall state: (A) the
redemption date; (B) the Gross Redemption Price, the Net Redemption Price and
the Balance, together with a certificate of the Chief Financial Officer of the
Corporation setting forth in reasonable detail the facts upon and the manner in
which each was determined or the Alternative Redemption Price, as the case may
be; (C) that shares of Dual Convertible Preferred Stock called for redemption
may be converted in accordance with, and subject to the terms of, paragraph (e)
hereof at any time prior to the date fixed for redemption (unless the
Corporation shall default in payment of the Net Redemption Price or the
Alternative Redemption Price, in which case such right shall not terminate at
such date); (D) the place or places where certificates for such shares are to be
surrendered for payment of the Net Redemption Price or the Alternative
Redemption Price;
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(E) the amount of any accrued and unpaid dividends; and (F) that dividends on
the shares to be redeemed will cease to accrue on such redemption date.
(vi) The Optional Redemption Notice having been mailed as aforesaid, from
and after the redemption date (unless default shall be made by the Corporation
in providing money for the payment of the Net Redemption Price or the
Alternative Redemption Price) dividends on the shares of Dual Convertible
Preferred Stock shall cease to accrue and said shares shall no longer be deemed
to be outstanding and shall have the status of authorized but unissued shares of
Preferred Stock, undesignated as to series, and all rights of the holders
thereof as shareholders of the Corporation (except the right to receive from the
Corporation the Net Redemption Price or the Alternative Redemption Price and any
accrued and unpaid dividends) shall cease. Upon surrender in accordance with the
Optional Redemption Notice of any certificates for the shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the Optional Redemption Notice shall so state),
such shares shall be redeemed by the Corporation at the Net Redemption Price or
the Alternative Redemption Price, as the case may be, plus any accrued and
unpaid dividends thereon.
(h) VOTING RIGHTS. (i) The holders of record of shares of Dual Convertible
Preferred Stock shall not be entitled to any voting rights except as hereinafter
provided in this paragraph (h) or as otherwise provided by law.
(ii) (A) Whenever any matter is required to be acted upon herein by the
holders of a majority of the Dual Convertible Preferred Stock, the affirmative
vote of the holders of a majority of the outstanding Dual Convertible Preferred
Stock, whether at a special meeting of such holders called as hereinafter
provided, or by the written consent of such holders pursuant to Section
7-1.1-30.3 of the Rhode Island Business Corporation Act, shall be required to
adopt such matter, which adoption shall be binding on all the holders of the
shares of Dual Convertible Preferred Stock.
(B) Upon the written request of the holders of at least 10% of the shares
of the Dual Convertible Preferred Stock, addressed to the Secretary of the
Corporation, a proper officer of the Corporation shall call a special meeting of
holders of Dual Convertible Preferred Stock. Such meeting shall be held at the
earliest practicable date upon the notice required for special meetings of
shareholders at a place designated by the holders of at least 10% of the shares
of the Dual Convertible Preferred Stock. If such meeting shall not be called by
the proper officers of the Corporation within 5 days after the personal service
of such written request upon the Secretary of the Corporation, or within 10 days
after mailing the same within the United States, by registered mail, addressed
to the Secretary of the Corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal authorities), then the
holders of at least 10% of the shares of Dual Convertible Preferred Stock may
designate in writing a holder of Dual Convertible Preferred Stock to call such
meeting at the expense of the Corporation, and such meeting may be called by
such person designated upon the notice required for special meetings of
shareholders and shall be held at the same place as is elsewhere provided in
this paragraph (h)(ii)(B). Any holder of Dual Convertible Preferred Stock that
would be entitled to vote at such meeting shall have access to the stock books
of the Corporation relating to the Dual Convertible Preferred Stock and the
right to examine and to make extracts therefrom, in person or by agent or
attorney, at any reasonable time or times, for the purpose of causing a meeting
of shareholders to be called pursuant to the provisions of this paragraph or
otherwise communicating with the holders of the Dual Convertible Preferred Stock
or for any other proper purpose.
(C) At any meeting of the holders of the Dual Convertible Preferred Stock,
the presence in person or by proxy of the holders of a majority of the then
outstanding shares of Dual Convertible Preferred Stock shall be required and be
sufficient to constitute a quorum of such holders for the action to be taken by
such class. At any such meeting or adjournment thereof in the absence of a
quorum of the holders of shares of Dual Convertible Preferred Stock, the holders
of a majority of such shares present in person or by proxy shall have the power
to adjourn the meeting from time to time, without notice (except as required by
law) other than announcement at the meeting, until a quorum shall be present.
(D) At any meeting of the holders of the Dual Convertible Preferred Stock,
the holders of a majority of the outstanding shares of the Dual Convertible
Preferred Stock shall be entitled to designate a committee (the
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"Committee") consisting of as many holders of the Dual Convertible Preferred
Stock as the holders of a majority of such shares may determine to be
appropriate. The Committee may be empowered to act on behalf of all holders of
the Dual Convertible Preferred Stock with respect to certain matters affecting
the exchangeability of the Dual Convertible Preferred Stock specified in
paragraphs (f) (iv) and (f) (v) and the acceptability of the Corporation's
selection of an investment banking firm hereunder if so designated by the
holders of the Dual Convertible Preferred Stock pursuant to this paragraph
(h)(ii)(D); provided, however, that in no event may the Committee be empowered
to elect to convert the Dual Convertible Preferred Stock into Common Stock, to
accept any Redemption Offer or to exchange the Dual Convertible Preferred Stock
for Holding Common Stock on behalf of the holders thereof.
(iii) So long as any shares of the Dual Convertible Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote or consent
of the holders of at least 66 2/3% of the outstanding shares of Dual Convertible
Preferred Stock, voting as a class, given in person or by proxy, either in
writing or by resolution adopted at a special meeting called for the purpose,
authorize any new class of Senior Securities.
(iv) So long as any shares of the Dual Convertible Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote or consent
of the holders of at least 66 2/3% of the outstanding shares of Dual Convertible
Preferred Stock, voting as a class, given in person or by proxy, either in
writing or by resolution adopted at a special meeting called for the purpose,
amend the Certificate of Incorporation or this Certificate of Designation so as
to affect materially and adversely the specified rights, preferences, privileges
or voting rights of shares of Dual Convertible Preferred Stock.
(i) OTHER REDEMPTION RIGHTS. (i) If less than 10% of the shares of the
Dual Convertible Preferred Stock originally issued is then outstanding, the
Corporation may redeem at its option, with the prior approval of the Federal
Reserve Board, the Dual Convertible Preferred Stock, in whole, but not in part,
at any time on or after the date that is ten years after the Issue Date, at a
redemption price of $200 per share (the "Stated Value Redemption Price"),
together with accrued and unpaid dividends thereon to the date of redemption,
without interest.
(ii) The Corporation may redeem at its option, with the prior approval of
the Federal Reserve Board, the Dual Convertible Preferred Stock, in whole, but
not in part, at any time on or after the date that is 12 years after the Issue
Date, at a redemption price in cash equal to the Fair Market Value (as
hereinafter defined) of such shares. The Corporation shall have the right to
have an independent nationally recognized investment banking firm render an
opinion of the fair market value for all the outstanding shares of the Dual
Convertible Preferred Stock as if all such shares were to be sold to a third
party (the "Fair Market Value"). The investment banking firm that renders such
opinion shall be selected by the Corporation but shall be reasonably acceptable
to the holders of a majority of the outstanding shares of the Dual Convertible
Preferred Stock. Such determination of Fair Market Value shall be binding and
conclusive on the Corporation and the holders of the Dual Convertible Preferred
Stock. The fees and expenses of such investment banking firm shall be paid by
the Corporation.
(iii) If the Corporation shall redeem shares of Dual Convertible Preferred
Stock pursuant to this paragraph (i), written notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than 90 days nor
more than 120 days prior to the redemption date, to each holder of record of the
shares of the Dual Convertible Preferred Stock at such holder's address as the
same appears on the stock register of the Corporation. Each such notice shall
state: (A) the redemption date; (B) the number of shares of Dual Convertible
Preferred Stock to be redeemed; (C) the Stated Value Redemption Price or the
Fair Market Value of such holder's shares, as the case may be; (D) that shares
of Dual Convertible Preferred Stock called for redemption may be converted in
accordance with, and subject to the terms of, paragraph (e) hereof at any time
prior to the date fixed for redemption (unless the Corporation shall default in
payment of the Stated Value Redemption Price or the Fair Market Value of such
shares, in which case such right shall not terminate at such date); (E) the
place or places where certificates for such shares are to be surrendered for
payment of the Stated Value Redemption Price or the Fair Market Value of such
shares; and (F) that dividends on the shares to be redeemed will cease to accrue
on such redemption date.
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(iv) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money for the
payment of the Stated Value Redemption Price or the Fair Market Value of such
shares) dividends on the shares of Dual Convertible Preferred Stock shall cease
to accrue and said shares shall no longer be deemed to be outstanding and shall
have the status of authorized but unissued shares of Preferred Stock,
undesignated as to series, and all rights of the holders thereof as shareholders
of the Corporation (except the right to receive from the Corporation the Stated
Value Redemption Price and any accrued and unpaid dividends or the Fair Market
Value of such shares) shall cease. Upon surrender in accordance with said notice
of any certificates for the shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so require and
the notice shall so state), such shares shall be redeemed by the Corporation at
the Stated Value Redemption Price plus any accrued and unpaid dividends thereon
or the Fair Market Value of such shares, as the case may be.
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EXHIBIT H
FLEET FINANCIAL GROUP, INC.
CUMULATIVE PARTICIPATING JUNIOR PREFERRED STOCK
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Cumulative Participating Junior Preferred Stock" (the "Junior
Preferred Stock") and the number of shares constituting the Junior Preferred
Stock shall be 1,500,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Junior Preferred Stock to a number less than the number
of shares then outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the conversion
of any outstanding securities issued by the Corporation convertible into Junior
Preferred Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) The holders of shares of Junior Preferred Stock, in preference to the
holders of Common Stock, par value $1.00 per share (the "Common Stock"), of the
Corporation, and of any other junior stock, but subject to the rights of holders
of any senior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first days of January, April, July and October
in each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Junior Preferred Stock,
in an amount per share (rounded to the nearest cent) equal to the greater of (a)
$1.00 or (b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Junior Preferred Stock. In the event the Corporation shall at any time after
November 21, 1990 declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock), then in each such case the
amount to which holders of shares of Junior Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Junior
Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Junior
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Junior Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the Record Date for the determination of holders
of shares of Junior Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on
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the shares of Junior Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Junior Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not more
than 50 days prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Junior Preferred Stock
shall have the following voting rights:
(A) Each share of Junior Preferred Stock shall entitle the holder
thereof to one hundred votes (subject to adjustment as set forth below) on
all matters submitted to a vote of the stockholders of the Corporation
(including, without limitation, the election of directors). In the event
the Corporation shall at any time after November 21, 1990, declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock), then in each such case the number of
votes to which holders of shares of Junior Preferred Stock were entitled to
immediately prior to such event shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in the Restated Articles of
Incorporation, or by law, the holders of shares of Junior Preferred Stock,
the holders of shares of Common Stock and the holders of any other capital
stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If at any time dividends on any Junior Preferred Stock shall
be in arrears in an amount equal to the full accrued dividends for six (6)
or more quarterly dividend periods, whether or not consecutive, shall not
have been paid or declared and a sum sufficient for the payment thereof
irrevocably set aside in trust for the holders of all of such shares, the
Board of Directors of the Corporation shall promptly take all necessary
actions to increase the authorized number of directors of the Corporation
by one (1) and the holders of the shares of the Junior Preferred Stock then
outstanding shall be entitled (by series, voting as a single class) to
elect one (1) person director to the Board of Directors of the Corporation
(such right to elect one (1) director being hereinafter sometimes referred
to as the "special voting rights"), each outstanding share having such
right being entitled for such purpose to one vote; PROVIDED, HOWEVER, that
at such time as the arrearage in payment of dividends which gave rise to
the exercise of the special voting rights has been cured with regard to the
Junior Preferred Stock by waiver or payment of all accrued dividends, the
right of the holders of such shares so to vote as provided in this
paragraph (C)(i) of this Section 3 shall cease (subject to renewal from
time to time upon the same terms and conditions) and the term of office of
the person who is at that time a director elected by such holders shall
terminate and the number of directors of the Corporation shall be
automatically reduced by one (1).
(ii) At any time after the special voting rights shall have become
vested in the holders of the shares of the Junior Preferred Stock as
provided in paragraph (C)(i) of this Section 3, the Secretary of the
Corporation, as promptly as possible but in any event within twenty (20)
days after receipt of the written request of the holders of 10% of the
shares of the Junior Preferred Stock then outstanding, addressed to the
Corporation at its principal office, shall call a special meeting of the
holders of the shares of the Junior Preferred Stock for the purpose of
electing such additional director, such meeting to be held at any place as
provided by the Bylaws of the Corporation for meetings of the Corporation's
stockholders, and upon not less than ten (10) nor more than twenty (20)
days notice. If such meeting shall not be so called within twenty (20) days
after receipt of the request by the Secretary of the Corporation, then the
holders of 10% of the shares of the Junior Preferred Stock then outstanding
may, by written notice to the Secretary of the Corporation, designate any
person to call such meeting, and the person so designated may call such
meeting, at any such place as provided above and upon not less than ten
(10) nor more
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than twenty (20) days notice and for that purpose shall have access to the
stockholder record books of the Corporation. No such special meeting of the
holders of the shares of the Junior Preferred Stock and no adjournment
thereof shall be held on a date later than thirty (30) days before the
annual meeting of stockholders of the Corporation. At any meeting so called
or at any annual meeting held at any time when the special voting rights
are in effect, the holders of a majority of the shares of the Junior
Preferred Stock then outstanding, present in person or by proxy, shall be
sufficient to constitute a quorum for the election of such additional
director, and such additional director, together with any and all other
directors who are then members of the Board of Directors, shall constitute
the duly elected directors of the Corporation.
(iii) With respect to a vacancy arising in the directorship referred
to in paragraph (C)(i) of this Section 3 at any time when the special
voting rights are in effect pursuant to paragraph (C)(i) of this Section 3,
upon the written request of the holders of 10% of the shares of the Junior
Preferred Stock then outstanding, addressed to the Corporation at its
principal office, the Secretary of the Corporation shall give notice of a
special meeting of holders of the shares of the Junior Preferred Stock of
the election of a director to fill such vacancy caused by the death,
resignation or other inability to serve as a director elected by such
holders, to be held not less than ten (10) nor more than twenty (20) days
following receipt by the Secretary of the Corporation of such written
request. So long as special voting rights are in effect pursuant to
paragraph (i) of this Section 3(c), any director who shall have been so
elected by the holders of the Junior Preferred Stock may be removed at any
time, either with or without cause, only by the affirmative vote of the
holders of the shares at the time entitled to cast a majority of the votes
entitled to be cast for the election of such director at a special meeting
of such holders called for that purpose, and any vacancy thereby created
may be filled by the vote of such holders.
(D) Except as set forth herein, or as otherwise provided by the
Restated Articles of Incorporation or by law, holders of Junior Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
(E) Holders of Junior Preferred Stock shall be entitled to such notice
of each meeting of stockholders as is furnished to the holders of Common
Stock with respect to such meeting.
Section 4. CERTAIN RESTRICTIONS.
(A) Subject to the provisions of the Restated Articles of
Incorporation, whenever quarterly dividends or other dividends or
distributions payable on the Junior Preferred Stock as provided in Section
2 are in arrears as of any Quarterly Dividend Payment Date, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Junior Preferred Stock outstanding shall have been
paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Preferred Stock,
except dividends paid ratably on the Junior Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred Stock,
provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends
and upon dissolution, liquidation or winding up) to the Junior Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Junior Preferred Stock, or any shares of stock ranking on a
parity with the Junior Preferred Stock, except in
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<PAGE>
accordance with the terms of the Restated Articles of Incorporation and
with a purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. REACQUIRED SHARES. Any shares of Junior Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Restated Articles of Incorporation, or as otherwise required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Junior Preferred Stock unless, prior thereto, the holders of
shares of Junior Preferred Stock shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment (the "Junior Preferred Liquidation
Preference"). Following the payment of the full amount of the Junior Preferred
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Junior Preferred Stock unless, prior thereto, the holders of shares
of Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Junior Preferred
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph (C) below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock) (such number in clause
(ii) immediately above being referred to as the "Adjustment Number"). Following
the payment of the full amount of the Junior Preferred Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of Junior
Preferred Stock and Common Stock, respectively, holders of Junior Preferred
Stock and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to one (1) with respect to such Junior Preferred Stock and
Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Junior Preferred Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Junior Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such parity shares in proportion
to their respective liquidation preferences. In the event, however, that there
are not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after November 21, 1990,
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation should
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Junior Preferred Stock shall at the same time be similarly exchanged or changed
into an amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount of stock, securities,
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<PAGE>
cash and/or any other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged. In the event
the Corporation shall at any time after November 21, 1990 declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to
the exchange of change of shares of Junior Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. RANKING. The Junior Preferred Stock shall rank junior, as to
dividends and upon liquidation, dissolution or winding up, to (a) the Common
Stock, (b) the Preferred Stock with Cumulative and Adjustable Dividends, $20 par
value, (c) any other class of capital stock of the Corporation unless the terms
of such class shall expressly provide otherwise, and (d), to the extent
permitted by the Restated Articles of Incorporation, all other series of
Preferred Stock issued by the Corporation.
Section 9. NO REDEMPTION. The shares of Junior Preferred Stock shall not
be redeemable.
Section 10. FRACTIONAL SHARES. The Junior Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of shares of Junior Preferred Stock.
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EXHIBIT 4(I)
FLEET FINANCIAL GROUP, INC.
-------------------
BYLAWS
ARTICLE 1.
OFFICES.
SECTION 1.01. Registered Office. The registered office of the Corporation in
the State of Rhode Island shall be at No. 50 Kennedy Plaza, City of Providence,
County of Providence. The name of the resident agent in charge thereof shall be
William C. Mutterperl.
SECTION 1.02. Other Offices. The Corporation may also have an office or
offices in such other place or places either within or without the State of
Rhode Island as the Board of Directors may from time to time determine or the
business of the Corporation require.
ARTICLE 2.
MEETINGS OF STOCKHOLDERS.
SECTION 2.01. Place of Meetings. All meetings of the stockholders of the
Corporation shall be held at such place either within or without the State of
Rhode Island as shall be fixed by the Board of Directors and specified in the
respective notices or waivers of notice of said meetings.
SECTION 2.02. Annual Meetings. (a) The annual meeting of the stockholders
for the election of directors and for the transaction of such other business as
may come before the meeting shall be held at the principal office of the
Corporation in the State of Rhode Island or such place as shall be fixed by the
Board of Directors, as eleven o'clock in the forenoon, local time, on the second
Wednesday in April in each year, if not a legal holiday at the place where such
meeting is to be held, and, if a legal holiday, then on the next succeeding
business day not a legal holiday at the same hour. (b) In respect of the annual
meeting for any particular year the Board of Directors may, by resolution fix a
different day, time or place (either within or without the State of Rhode
Island) for the annual meeting. (c) If the election of directors shall not be
held on the day designated herein or the day fixed by the Board, as the case may
be, for any annual meeting, or on the day of any adjourned session thereof, the
Board of Directors shall cause the election to be held at a special meeting as
soon thereafter as conveniently may be. At such special meeting the stockholders
may elect the directors and transact other business with the same force and
effect as at an annual meeting duly called and held.
SECTION 2.03. Special Meetings. A special meeting of the stockholders for
any purpose or purposes properly brought before such meeting may be called at
any time by the Chairman of the Board or President or by order of the Board of
Directors pursuant to a resolution adopted by a majority of the Board and must
be called by the Secretary upon the request in writing of three or more
stockholders holding of record at least 80 percent of the outstanding shares of
stock of the Corporation entitled to vote at such meeting.
SECTION 2.04. Notice of Meetings. (a) Except as otherwise required by
statute, notice of each annual or special meeting of the stockholders shall be
given to each stockholder of record entitled to vote at such meeting not less
than 10 days nor more than 50 days before the day on which the meeting is to be
held by delivering written notice thereof to him personally or by mailing such
notice, postage prepaid,
<PAGE>
addressed to him at his post-office address last shown in the records of the
Corporation or by transmitting notice thereof to him at such address by
telegraph, cable or any other available method. Every such notice shall state
the time and place of the meeting and, in case of a special meeting, shall state
briefly the purposes thereof. (b) Notice of any meeting of stockholders shall
not be required to be given to any stockholder who shall attend such meeting in
person or by proxy or who shall, in person or by attorney thereunto authorized,
waive such notice in writing or by telegraph, cable or any other available
method either before or after such meeting. Notice of any adjourned meeting of
the stockholders shall not be required to be given except when expressly
required by law.
SECTION 2.05. Quorum. (a) At each meeting of the stockholders, except where
otherwise provided by statute, the Articles of Incorporation or these Bylaws,
the holders of record of a majority of the issued and outstanding shares of
stock of the Corporation entitled to vote at such meeting, present in person or
represented by proxy, shall constitute a quorum for the transaction of business.
(b) In the absence of a quorum a majority in interest of the stockholders of the
Corporation entitled to vote, present in person or represented by proxy, or, in
the absence of all such stockholders, any officer entitled to preside at, or act
as secretary of, such meeting, shall have the power to adjourn the meeting from
time to time, until stockholders holding the requisite amount of stock shall be
present or represented. At any such adjourned meeting at which a quorum shall be
present any business may be transacted which might have been transacted at the
meeting as originally called.
SECTION 2.06. Organization. At each meeting of the stockholders the Chairman
of the Board, the President, any Vice President, or any other officer designated
by the Board of Directors, shall act as chairman, and the Secretary or an
Assistant Secretary of the Corporation, or in the absence of the Secretary and
all Assistant Secretaries, a person whom the chairman of such meeting shall
appoint shall act as secretary of the meeting and keep the minutes thereof.
SECTION 2.07. Voting. (a) Except as otherwise provided by law or by the
Articles of Incorporation or these Bylaws, at every meeting of the stockholders
each stockholder shall be entitled to one vote, in person or by proxy, for each
share of capital stock of the Corporation registered in his name on the books of
the Corporation:
(i) on the date fixed pursuant to Section 9.03 of these Bylaws as the
record date for the determination of stockholders entitled to vote at such
meeting; or
(ii) if no record date shall have been fixed, then the record date shall
be at the close of business on the day next preceding the day on which
notice of such meeting is given.
(b) Persons holding stock in a fiduciary capacity shall be entitled to vote
the shares so held. In the case of stock held jointly by two or more executors,
administrators, guardians, conservators, trustees or other fiduciaries, such
fiduciaries may designate in writing one or more of their number to represent
such stock and vote the shares so held, unless there is a provision to the
contrary in the instrument, if any, defining their powers and duties. (c)
Persons whose stock is pledged shall be entitled to vote thereon until such
stock is transferred on the books of the Corporation to the pledgee, and
thereafter only the pledgee shall be entitled to vote. (d) Any stockholder
entitled to vote may do so in person or by his proxy appointed by an instrument
in writing subscribed by such stockholder or by his attorney thereunto
authorized, or by a telegram, cable or any other available method delivered to
the secretary of the meeting; provided, however, that no proxy shall be voted
after 11 months from its date, unless said proxy provides for a longer period.
(e) At all meetings of the stockholders, all matters (except where other
provision is made by law or by the Articles of Incorporation or these Bylaws)
shall be decided by the vote of a majority in interest of the stockholders
entitled to vote thereon, present in person or by proxy, at such meeting, a
quorum being present.
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SECTION 2.08. Inspectors. The chairman of the meeting may at any time
appoint two or more inspectors to serve at a meeting of the stockholders. Such
inspectors shall decide upon the qualifications of voters, accept and count the
vote for and against the questions presented, report the results of such votes,
and subscribe and deliver to the secretary of the meeting a certificate stating
the number of shares of stock issued and outstanding and entitled to vote
thereon and the number of shares voted for and against the questions presented.
The inspectors need not be stockholders of the Corporation, and any director or
officer of the Corporation may be an inspector on any question other an a vote
for or against his election to any position with the Corporation or on any other
question in which he may be directly interested. Before acting as herein
provided each inspector shall subscribe an oath faithfully to execute the duties
of an inspector with strict impartiality and according to the best of his
ability.
SECTION 2.09. List of Stockholders. (a) It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of its stock
ledger to prepare and make, or cause to be prepared and made, at least 10 days
before every meeting of the stockholders, a complete list of stockholders
entitled to vote thereat, arranged in alphabetical order and showing the address
of each stockholder and the number of shares registered in the name of
stockholder. Such list shall be open during ordinary business hours to the
examination of any stockholder for any purpose germane to the meeting for a
period of at least 10 days prior to the election, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place where the meeting is
to be held. (b) Such list shall be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
stockholder who is present. (c) Upon the willful neglect or refusal of the
directors to produce such list at any meeting for the election of directors,
they shall be ineligible for election to any office at such meeting. (d) The
stock ledger shall be conclusive evidence as to who are the stockholders
entitled to examine the stock ledger and the list of stockholders required by
this Section 2.09 on the books of the Corporation or to vote in person or by
proxy at any meeting of stockholders.
SECTION 2.10. Introduction of Business at a Meeting of Stockholders. (a) At
an annual or special meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
properly brought before an annual or special meeting of stockholders. To be
properly brought before an annual or special meeting of stockholders, business
must be (i) in the case of a special meeting, specified in the notice of the
special meeting (or any supplement thereto) given by the officer of the
Corporation calling such meeting or by or at the direction of the Board, or (ii)
in the case of an annual meeting, properly brought before the meeting by or at
the director of the Board, or otherwise properly brought before the annual
meeting by a stockholder. For business to be properly brought before an annual
meeting of stockholders by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to the Secretary of the Corporation, or
mailed to and received at the principal executive offices of the Corporation, or
mailed to and received at the principal executive officers of the Corporation by
the Secretary, not less than 30 days prior to the date of the annual meeting;
provided, however, that if less than 40 days' notice or prior public disclosure
of the date of the annual meeting is given or made to stockholders, notice by
the stockholder to be timely must be so delivered or received not later than the
close of business on the 7th day following the earlier of (i) the day on which
such notice of the date of the meeting was mailed, or (ii) the day on which such
public disclosure was made.
(b) A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before an annual meeting stockholders
(i) a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (ii)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business and any other stockholders known by such
stockholder to be supporting such proposal, (iii) the class and number of shares
of the Corporation which are beneficially owned by such stockholder on the date
of such stockholder's notice and by any other stockholders known by such
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stockholder to be supporting such proposal on the date of such stockholder's
notice, and (iv) any material interest of the stockholder in such proposal.
(c) Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at a meeting of stockholders except in accordance with the
procedures set forth in this Section 2.10. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that the business was
not properly brought before the meeting in accordance with the procedures
prescribed by the Bylaws, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
ARTICLE 3.
BOARD OF DIRECTORS.
SECTION 3.01. General Powers. The business, property and affairs of the
Corporation shall be managed by the Board of Directors.
SECTION 3.02. Number and Qualifications. (a) The number of directors of the
Corporation, which shall constitute the whole Board of Directors, shall be
determined in accordance with the provisions of Article SEVENTH of the Articles
of Incorporation. (b) A director need not be a stockholder. (c) No person shall
be elected a director who has attained the age of 70 and no person shall
continue to serve as a director after the date of the first meeting of the
stockholders of the Corporation held on or after the date on which such person
attained the age of 70.
SECTION 3.03. Classes, Elections and Term. The Board of Directors shall be
divided into three classes, shall be nominated in accordance with the provisions
of Section 3.15 of this Article 3, and shall be elected and shall serve terms in
accordance with the provisions of Article SEVENTH of the Articles of
Incorporation.
SECTION 3.04. Quorum and Manner of Acting. (a) Except as otherwise provided
by statute or by the Articles of Incorporation, a majority of the directors at
the time in office shall constitute a quorum for the transaction of business at
any meeting and the affirmative action of a majority of the directors present at
any meeting at which a quorum is present shall be required for the taking of any
action by the Board of Directors. (b) In the event the Secretary is informed
that one or more of the directors shall be disqualified to vote at such meeting,
then the required quorum shall be reduced by one for each such director so
absent or disqualified; provided, however, that in no event shall the quorum as
adjusted be less than one-third of the total number of directors. (c) In the
absence of a quorum at any meeting of the Board such meeting need not be held;
or a majority of the directors present thereat or, if no director be present,
the Secretary may adjourn such meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting need not be given.
SECTION 3.05. Offices, Place of Meetings and Records. The Board of Directors
may hold meetings, have an office or offices and keep the books and records of
the Corporation at such place or places within or without the State of Rhode
Island as the Board may from time to time determine. The place of meeting shall
be specified or fixed in the respective notices or waivers of notice thereof,
except where otherwise provided by statute by the Articles of Incorporation or
these Bylaws. Meetings of the Board of Directors or any committee of Directors,
including without limitation the Executive Committee, may be held by means of a
telephone conference circuit and connection with such circuit shall constitute
presence at such meetings.
SECTION 3.06. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable following each
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annual election of directors. Such meeting shall be called and held at the place
and time specified in the notice or waiver of notice thereof as in the case of a
special meeting of the Board of Directors.
SECTION 3.07. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such places and at such times as the Board shall from time to
time by resolution determine. If any day fixed for a regular meeting shall be a
legal holiday at the place where the meeting is to be held, then the meeting
which would otherwise be held on that day shall be held at said place at the
same hour on the next succeeding business day. Notice of regular meetings need
not be given.
SECTION 3.08. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board or the
President or by any five of the directors. Notice of each said meeting shall be
mailed to each director, addressed to him at his residence or usual place of
business, at least two days before the day on which the meeting is to be held,
or shall be sent to him at his residence or at such place of business by
telegraph, cable or other available means, or shall be delivered personally or
by telephone, not later than one day before the day on which the meeting is to
be held. Each such notice shall state the time and place of the meeting but need
not state the purposes thereof except as otherwise herein expressly provided.
Notice of any such meeting need not be given to any director, however, if waived
by him in writing or by telegraph, cable or otherwise, whether before or after
such meeting shall be held, or if he shall be present at such meeting.
SECTION 3.09. Organization. At each meeting of the Board of Directors, the
Chairman of the Board or, in his absence, the President, or in the absence of
each of them, a director chosen by a majority of the directors present shall act
as chairman. The Secretary or, in his absence, an Assistant Secretary or, in the
absence of the Secretary and all Assistant Secretaries, a person whom the
chairman of such meeting shall appoint shall act as secretary of such meeting
and keep the minutes thereof.
SECTION 3.10. Order of Business. At all meetings of the Board of Directors
business shall be transacted in the order determined by the Board.
SECTION 3.11. Removal of Directors. Any one or more directors of the
Corporation may be removed at any time, but only in accordance with the
provisions of Article SEVENTH of the Articles of Incorporation.
SECTION 3.12. Resignation. Any director of the Corporation may resign at any
time by giving written notice of his resignation to the Board of Directors, to
the Chairman of the Board, the President, any Vice President or the Secretary of
the Corporation. Such resignation shall take effect at the date of receipt of
such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 3.13. Vacancies and Newly Created Directorships. Vacancies and newly
created directorships shall be filled only in accordance with the provisions of
Article SEVENTH of the Articles of Incorporation.
SECTION 3.14. Compensation. Each director, in consideration of his serving
as such, shall be entitled to receive from the Corporation such amount per annum
or such fees for attendance at directors' meetings, or both, as the Board of
Directors shall from time to time determine, together with reimbursement for the
reasonable expenses incurred by him in connection with the performance of his
duties; provided that nothing herein contained shall be construed to preclude
any director from serving the Corporation or its subsidiaries in any other
capacity and receiving proper compensation therefor.
SECTION 3.15. Nomination of Directors. (a) Only persons nominated in
accordance with the procedures set forth in this Section shall be eligible for
election as directors. Nominations of persons for election to the Board may be
made at a meeting of stockholders (i) by or at the direction of the Board, or
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(ii) by any stockholder of the Corporation entitled to vote for the election of
directors at such meeting who complies with the notice procedures set forth in
this Section 3.15. Such nominations, other than those made by or at the
direction of the Board, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to the Secretary, or mailed to and received at the principal executive
offices of the Corporation by the Secretary, not less than 30 days prior to the
date of a meeting; provided, however, that if fewer than 40 days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so delivered or
received not later than the close of business on the 7th day following the
earlier of (i) the day on which such notice of the date of such meeting was
mailed, or (ii) the day on which such public disclosure was made.
(b) A stockholder's notice to the Secretary shall set forth (i) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director (w) the name, age, business address and residence address of such
person, (x) the principal occupation or employment of such person, (y) the class
and number of shares of the Corporation which are beneficially owned by such
person on the date of such stockholder's notice and (z) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including without limitation such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected); and
(ii) as to the stockholder giving the notice (x) the name and address, as they
appear on the Corporation's books, of such stockholder and any other
stockholders known by such stockholder to be supporting such nominees and (y)
the class and number of shares of the Corporation which are beneficially owned
by such stockholder on the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such nominees on the
date of such stockholder's notice.
(c) No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 3.15. The chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the Bylaws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
ARTICLE 4.
COMMITTEES.
SECTION 4.01. Executive Committee. The Board of Directors may, by resolution
or resolutions passed by a majority of the whole Board, appoint an Executive
Committee to consist of not less than three nor more than ten members of the
Board of Directors, including the Chairman of the Board and the President, and
shall designate one of the members as its chairman. Notwithstanding any
limitation on the size of the Executive Committee, the Committee may invite
members of the Board to attend one at a time at its meetings. For the purpose of
the meeting he so attends, the invited director shall be entitled to vote on
matters considered at such meeting and shall receive the Executive Committee fee
for such attendance. At any time one additional director may be invited to an
Executive Committee meeting in addition to the rotational invitee and, in such
case, such additional invitee shall also be entitled to vote on matters
considered at such meeting and shall receive the Executive committee fee for
such attendance.
Each member of the Executive Committee shall hold office, so long as he
shall remain director, until the first meeting of the Board of Directors held
after the next annual election of directors and until his successor is duly
appointed and qualified. The chairman of the Executive Committee or, in his
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absence, a member of the Committee chosen by a majority of the members present
shall preside at meetings of the Executive Committee and the Secretary or an
Assistant Secretary of the Corporation, or such other person as the Executive
Committee shall from time to time determine, shall act as secretary of the
Executive Committee.
The Board of Directors, by action of the majority of the whole Board, shall
fill vacancies in the Executive Committee.
SECTION 4.02. Powers. During the intervals between the meetings of the Board
of Directors, the Executive Committee shall have and may exercise all of the
powers of the Board of Directors in all cases in which specific directions shall
not have been given by the Board of Directors.
SECTION 4.03. Procedure; Meetings; Quorum. The Executive Committee shall fix
its own rules of procedure subject to the approval of the Board of Directors,
and shall meet at such times and at such place or places as may be provided by
such rules. At every meeting of the Executive Committee the presence of a
majority of all the members shall be necessary to constitute a quorum and the
affirmative vote of a majority of the members present shall be necessary for the
adoption by it of any resolution. In the absence of a quorum at any meeting of
the Executive Committee such meeting need not be held; or a majority of the
members present thereat or, if no members be present, the secretary of the
meeting may adjourn such meeting from time to time until a quorum be present.
SECTION 4.04. Compensation. Each member of the Executive Committee shall be
entitled to receive from the Corporation such fee, if any, as shall be fixed by
the Board of Directors, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties.
SECTION 4.05. Other Board Committees. The Board of Directors may, from time
to time, by resolution passed by a majority of the whole Board, designate one or
more committees in addition to the Executive Committee, each committee to
consist of two or more of the directors of the Corporation. Any such committee,
to the extent provided in the resolution or in the Bylaws of the Corporation,
shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation.
A majority of all the members of any such committee may determine its action
and fix the time and place of its meetings, unless the Board of Directors shall
otherwise provide. The Board of Directors shall have power to change the members
of any committee at any time, to fill vacancies and to discharge any such
committee, either with or without cause, at any time.
SECTION 4.06. Alternates. The Chairman of the Board or the President may
designate one or more directors as alternate members of any committee who may
act in the place and stead of members who temporarily cannot attend any such
meeting.
SECTION 4.07. Additional Committees. The Board of Directors may from time to
time create such additional committees of directors, officers, employees or
other persons designated by it (or any combination of such persons) for the
purpose of advising the Board, the Executive Committee and the officers and
employees of the Corporation in all such matters as the Board shall deem
advisable and with such functions and duties as the Board shall by resolutions
prescribe.
A majority of all the members of any such committee may determine its action
and fix the time and place of its meetings, unless the Board of Directors shall
otherwise provide. The Board of Directors shall have power to change the members
of any committee at any time, to fill vacancies and to discharge any such
committee, either with or without cause, at any time.
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ARTICLE 5
ACTION BY CONSENT.
SECTION 5.01. Consent by Directors. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if prior to such action a written consent thereto is
signed by all members of the Board or of such committee, as the case may be, and
such written consent is filed with the minutes of the proceedings of the Board
of such committee.
SECTION 5.02. Consent by Stockholders. Any action required or permitted to
be taken at any meeting of the stockholders may be taken without a meeting upon
the written consent of the holders of shares of stock entitled to vote who hold
the number of shares which in the aggregate are at least equal to the percentage
of the total vote required by statute or the Articles of Incorporation or these
Bylaws for the proposed corporate action, and provided that prompt notice of
such action shall be given to all stockholders who would have been entitled to
vote upon the action if such meeting were held.
ARTICLE 6.
OFFICERS.
SECTION 6.01. Number. The principal officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents (the number
thereof and variations in title to be determined by the Board of Directors), a
Treasurer and a Secretary. In addition, there may be such other or subordinate
officers, agents and employees as may be appointed in accordance with the
provisions of Section 6.03. Any two or more offices, except those of President
and Secretary, may be held by the same person.
SECTION 6.02. Election, Qualifications and Term of Office. Each officer of
the Corporation, except such officers as may be appointed in accordance with the
provisions of Section 6.03, shall be elected annually by the Board of Directors
and shall hold office until his successor shall have been duly elected and
qualified, or until his death, or until he shall have resigned or shall have
been removed in the manner herein provided. The Chairman of the Board and the
President shall be and remain directors.
SECTION 6.03. Other Officers. The Corporation may have such other officers,
agents and employees as the Board of Directors may deem necessary, including a
Controller, one or more Assistant Controllers, one or more Assistant Treasurers,
and one or more Assistant Secretaries, each of whom shall hold office for such
period, have such authority, and perform such duties as the Board of Directors
or the President may from time to time determine. The Board of Directors may
delegate to any principal officer the power to appoint or remove any such
subordinate officers, agents or employees.
SECTION 6.04. Mandatory Retirement. No officer of the Corporation shall
continue to hold office beyond the first day of the month following or
coinciding with his attaining age 65, unless the Board of Directors specifically
authorizes such continuance on a year-to-year basis.
SECTION 6.05. Removal. Any officer may be removed, either with or without
cause, by a vote of a majority of the whole Board of Directors or, except in
case of any officer elected by the Board of Directors, by any committee or
officer upon whom the power of removal may be conferred by the Board of
Directors.
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SECTION 6.06. Resignation. Any officer may resign at any time by giving
written notice to the Board of Directors, the Chairman of the Board or the
President. Any such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein; and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 6.07. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed in these Bylaws for
regular election or appointment to such office.
SECTION 6.08. 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 6.09. 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.
SECTION 6.10. Vice Presidents. Each Vice President shall have such powers
and perform such duties as the Board of Directors or the Executive Committee may
from time to time prescribe or as shall be assigned to him by the President.
SECTION 6.11. Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds and securities of the Corporation, and shall
deposit all such funds to the credit of the Corporation in such banks, trust
companies or other depositaries as shall be selected in accordance with the
provisions of these Bylaws; he shall disburse the funds of the Corporation as
may be ordered by the Board of Directors or the Executive Committee, making
proper vouchers for such disbursements, and shall render to the Board of
Directors or the stockholders, whenever the Board may require him so to do, a
statement of all his transactions as Treasurer or the financial condition of the
Corporation; and, in general, he shall perform all the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him by the Board of Directors, any committee of the Board designated by it so
to act or the President.
SECTION 6.12. Secretary. The Secretary shall record or cause to be recorded
in books provided for the purpose the minutes of the meetings of the
stockholders, the Board of Directors, and all committees of which a secretary
shall not have been appointed; shall see that all notices are duly given in
accordance with the provisions of these Bylaws and as required by law; shall be
custodian of all corporate records (other than financial) and of the seal of the
Corporation and see that the seal is affixed to all documents the execution of
which on behalf of the Corporation under its seal is duly authorized in
accordance with the provisions of these Bylaws; shall keep, or cause to be kept,
the list of stockholders as required by Section 2.09, which include the
post-office addresses of the stockholders and the number of shares held by them,
respectively, and shall make or cause to be made, all proper changes therein,
shall see that the books, reports, statements, certificates and all other
documents and records required by law are properly kept and filed; and, in
general, shall perform all duties incident to the office of Secretary and such
other duties as may from time to time be assigned to him by the Board of
Directors, the Executive Committee or the President.
SECTION 6.13. Salaries. The salaries of the principal officers of the
Corporation shall be fixed from time to time by the Board of Directors or a
special committee thereof, and none of such officers shall be prevented from
receiving a salary by reason of the fact that he is a director of the
Corporation.
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ARTICLE 7.
INDEMNIFICATION
SECTION 7.01. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter, a "proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director,
officer, employee or agent of the Corporation or, while a director, officer,
employee or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of any foreign or domestic
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, whether the basis of such proceeding is alleged action (or failure
to act) in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by the Rhode Island General Laws, as the same shall exist from time to
time (but, in the case of an amendment to said General Laws, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said General Laws permitted the Corporation to provide prior to such
amendment) against all expenses, liability and loss (including judgments,
penalties, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees) actually incurred by such person in connection therewith, and
such indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators; provided, however, that the
Corporation shall indemnify any such person seeking indemnity in connection with
a proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
Such right shall be a contract right and shall include the right to be paid by
the Corporation for expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Rhode Island
General Laws so require, the payment of such expenses incurred by a director,
officer, employee or agent in such person's capacity as a director, officer,
employee or agent of the Corporation (and not in any other capacity in which
service was or is rendered by such person while a director, officer, employee or
agent, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of such proceeding, shall be made only upon
delivery to the Corporation by the indemnified party of a written affirmation of
such party's good faith belief that such party has met the applicable standards
of conduct and of an undertaking, by or on behalf of such party, to repay all
amounts so advanced if it shall ultimately be determined that such party is not
entitled to be indemnified under this Section 7.01 or otherwise. Determinations
and authorizations of payment under this Section 7.01 shall be made in the same
manner as the determination that indemnification is permissible.
SECTION 7.02. Right of Claimant to Bring Suit. If a claim under Section 7.01
is not paid in full by the Corporation within 90 days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce the claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
written affirmation and undertaking has been tendered to the Corporation) that
the claimant has not met the standards of conduct which make it permissible
under the Rhode Island General Laws for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense by clear
and convincing evidence shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, its stockholders or independent
legal counsel) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances, nor
an actual determination by the Corporation (including its
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Board of Directors, its stockholders or independent legal counsel) that the
claimant has not met such applicable standards of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standards of conduct.
SECTION 7.03. Non-Exclusivity of Rights. The rights conferred on any person
by Sections 7.01 and 7.02 of this Article 7 shall not be exclusive of any other
right which such person may have or hereafter acquire under any statute,
provision of the Articles of Incorporation, Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 7.04. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was a
director, officer, employee or agent of the Corporation, or who, while a
director, officer, employee or agent of the Corporation, is or was serving at
the request of the Corporation as a director, officer, partner, trustee,
employee or agent of any foreign or domestic corporation, partnership, joint
venture, trust, other enterprise or employee benefit plan, against any such
expenses, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expenses, liability or loss under the
Rhode Island General Laws.
ARTICLE 8.
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 8.01. Execution of Contracts. Unless the Board of Directors or the
Executive Committee shall otherwise determine, the Chairman of the Board, the
President, any Vice President or the Treasurer and the Secretary or any
Assistant Secretary may enter into any contracts or execute any contract or
other instrument, the execution of which is not otherwise specifically
provided for, in the name and on behalf of the Corporation. The Board of
Directors, or any committee designated thereby with power so to act, except
as otherwise provided in these Bylaws, may authorize any other or additional
officer or officers or agent or agents of the Corporation to enter into any
contract or execute and deliver any instrument in the name and on behalf of
the Corporation, and such authority may be general or confined to specific
instances. Unless authorized so to do by these Bylaws or by the Board of
Directors or by any such committee, no officer, agent or employee shall have
any power or authority to bind the Corporation by any contract or engagement
or to pledge its credit or to render it liable pecuniary for any purpose or
to any amount.
SECTION 8.02. Loans. No loan shall be contracted on behalf of the
Corporation, and no evidence of indebtedness shall be issued, endorsed or
accepted in its name, unless authorized by the Board of Directors or Executive
Committee or other committee designated by the Board so to act. Such authority
may be general or confined to specific instances. When so authorized, the
officer or officers thereunto authorized may effect loans and advances at any
time for the Corporation from any bank, trust company or other institution, or
from any firm, corporation or individual, and for such loans and advances may
make, execute and deliver promissory notes or other evidences of indebtedness
and liabilities of the Corporation, may mortgage, pledge, hypothecate or
transfer any real or personal property at any time owned or held by the
Corporation, and to that end execute instruments of mortgage or pledge or
otherwise transfer such property.
SECTION 8.03. Checks, Drafts, Etc. All checks, drafts, bills of exchange or
other orders for the payment of money, obligations, notes, or other evidence of
indebtedness, bills of lading, warehouse receipts and insurance certificates of
the Corporation, shall be signed or endorsed by such officer or officers, agent
or agents, attorney or attorneys, employee or employees, of the Corporation as
shall from time to time be determined by resolution of the Board of Directors or
Executive Committee or other committee designated by the Board so to act.
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SECTION 8.04. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositaries as the Board of Directors or
Executive Committee or other committee designated by the Board so to act may
from time to time designate, or as may be designated by any officer or officers
or agent or agents of the Corporation to whom such power may be delegated by the
Board of Directors or Executive Committee or other committee designated by the
Board so to act and, for the purpose of such deposit and for the purposes of
collection for the account of the Corporation, all checks, drafts and other
orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer, agent or
employee of the Corporation or in such manner as may from time to time be
designated or determined by resolution of the Board of Directors or Executive
Committee or other committee designated by the Board so to act.
SECTION 8.05. Proxies in Respect of Securities of Other Corporations. Unless
otherwise provided by resolution adopted by the Board of Directors or the
Executive Committee or other committee so designated to act by the Board, the
Chairman of the Board or the President or any Vice President may from time to
time appoint an attorney or attorneys or agent or agents of the Corporation, in
the name and on behalf of the Corporation, to cast votes which the Corporation
may be entitled to cast as the holder of stock or other securities in any other
corporation, association or trust any of whose stock or other securities may be
held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, association or trust, or to consent in
writing, in the name of the Corporation as such holder, to any action by such
other corporation, association or trust, and may instruct the person or persons
so appointed as to the manner of casting such votes or giving such consent, and
may execute or cause to be executed in the name and on behalf of the Corporation
and under its corporate seal, or otherwise, all such written proxies or other
instruments as he may deem necessary or proper in the premises.
ARTICLE 9.
BOOKS AND RECORDS.
SECTION 9.01. Place. The books and records of the Corporation may be kept at
such places within or without the State of Rhode Island as the Board of
Directors may from time to time determine. The stock record books and the blank
stock certificate books shall be kept by the Secretary or by any other officer
or agent designated by the Board of Directors.
SECTION 9.02. Addresses of Stockholders. Each stockholder shall furnish to
the Secretary of the Corporation or to the transfer agent of the Corporation an
address at which notices of meetings and all other corporate notices may be
served upon or mailed to him, and if any stockholder shall fail to designate
such address, corporate notices may be served upon him by mail, postage prepaid,
to him at his post-office address last known to the Secretary or to the transfer
agent of the Corporation or by transmitting a notice thereof to him at such
address by telegraph, cable or other available method.
SECTION 9.03. Record Dates. The Board of Directors may fix in advance a
date, not exceeding 60 days preceding the date of any meeting of stockholders,
or the date for the payment of any dividend, or the date for the allotment of
any rights, or the date when any change or conversion or exchange of capital
stock of the Corporation shall go into effect, or a date in connection with
obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting or any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any
change, conversion or exchange of capital stock of the Corporation, or to give
such consent, and in each case such stockholders of record on the
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date so fixed shall be entitled to notice of, or to vote at, such meeting and
any adjournment thereof, or to receive payment of such dividend, or to receive
such allotment of rights, or to exercise such rights or to give such consent, as
the case may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid.
SECTION 9.04. Audit of Books and Accounts. The books and accounts of the
Corporation shall be audited at least once in each fiscal year by certified
public accountants of good standing selected by the Board of Directors.
ARTICLE 10.
SHARES AND THEIR TRANSFER.
SECTION 10.01. Certificates of Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate certifying the number of
shares owned by him in the Corporation and designating the class of stock to
which such shares belong, which shall otherwise be in such form as the Board of
Directors shall prescribe. Each such certificate shall be signed by the Chairman
of the Board or the President or a Vice President and the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the
Corporation; provided, however, that where such certificate is signed or
countersigned by a transfer agent or registrar the signatures of such officers
of the Corporation and the seal of the Corporation may be in facsimile form. In
case any officer or officers who shall have signed, or whose facsimile signature
or signatures shall have been used on, any such certificate or certificates
shall cease to be such officer or officers of the Corporation, whether because
of death, resignation or otherwise, before such certificate or certificates
shall have been delivered by the Corporation, such certificate or certificates
may nevertheless be issued and delivered by the Corporation as though the person
or persons who signed such certificate or whose facsimile signature or
signatures shall have been used thereon had not ceased to be such officer or
officers of the Corporation.
SECTION 10.02. Record. A record shall be kept of the name of the person,
firm or corporation owning the stock represented by each certificate for stock
of the Corporation issued, the number of shares represented by each such
certificate, and the date thereof, and, in the case of cancellation, the date of
cancellation. The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards to the
Corporation.
SECTION 10.03. Transfer of Stock. Transfers of shares of the stock of the
Corporation shall be made on the books of the Corporation only by the registered
holder thereof, or by his attorney thereunto authorized, and on the surrender of
the certificate or certificates for such shares properly endorsed.
SECTION 10.04. Transfer Agent and Registrar; Regulations. The Corporation
shall, if and whenever the Board of Directors or Executive Committee shall so
determine, maintain one or more transfer offices or agencies, each in charge of
a transfer agent designated by the Board of Directors, where the shares of the
capital stock of the Corporation shall be directly transferable, and also if and
whenever the Board of Directors shall so determine, maintain one or more
registry offices, each in charge of a registrar designated by the Board of
Directors, where such shares of stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient, not
inconsistent with these Bylaws, concerning the issue, transfer and registration
of certificate for shares of the capital stock of the Corporation.
SECTION 10.05. Lost, Destroyed or Mutilated Certificates. In case of the
alleged loss or destruction or the mutilation of a certificate representing
capital stock of the Corporation, a new certificate may be issued in place
thereof, in the manner and upon such terms as the Board of Directors may
prescribe.
13
<PAGE>
ARTICLE 11.
SEAL.
The Board of Directors shall provide a corporate seal, which shall be in the
form of a circle and shall bear the name of the Corporation and the words and
figures "Incorporated 1970, Rhode Island".
ARTICLE 12
FISCAL YEAR.
The fiscal year of the Corporation shall be the calendar year.
ARTICLE 13.
WAIVER OF NOTICE.
Whenever any notice whatever is required to be given by statute, these
Bylaws or the Articles of Incorporation, a waiver thereof in writing, signed by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE 14.
AMENDMENTS.
These Bylaws may be altered, amended or repealed in whole or in part, and
new Bylaws may be adopted in whole or in part, only by the affirmative vote of
80% of the Board of Directors and a majority of the Continuing Directors (as
defined in Article SEVENTH of the Articles of Incorporation) or by the
stockholders as provided in the Articles of Incorporation and applicable law. No
amendment may be made unless the Bylaw, as amended, is consistent with the
requirements of law and of the Articles of Incorporation.
14
EXHIBIT 12(B)
<TABLE><CAPTION>
FLEET FINANCIAL GROUP, INC.
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
EXCLUDING INTEREST ON DEPOSITS
($ in Thousands)
Three
Months Nine Months
Ended Ended
September 30 September 30 Year Ended December 31
------------------------------------------------------------------------------------
1995 1995 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net income (loss) $177,360 $513,685 $612,931 $488,049 $279,843 $97,672 ($73,687)
Adjustments:
(a) Applicable income taxes (benefits) 115,288 337,981 397,708 327,407 228,526 55,176 (89,636)
(b) Fixed charges:
(1) Interest on borrowed funds 176,840 479,716 526,397 417,301 386,275 449,544 782,814
(2) 1/3 of rent 7,434 22,749 33,706 34,217 29,672 23,033 19,121
(c) Preferred dividends 2,463 7,390 24,742 36,927 49,706 21,958 12,990
-------- -------- ---------- ---------- -------- -------- --------
(d) Adjusted earnings $479,385 $1,361,521 $1,595,484 $1,303,901 $974,022 $647,383 $651,602
-------- -------- ---------- ---------- -------- -------- --------
Fixed charges [b(1) + b(2)+c] $186,737 $509,855 $584,845 $488,445 $465,653 $494,535 $814,925
-------- -------- ---------- ---------- -------- -------- --------
Adjusted earnings / fixed charges 2.57x 2.67x 2.73x 2.67x 2.09x 1.31x 0.80x*
-------- -------- ---------- ---------- -------- -------- --------
INCLUDING INTEREST ON DEPOSITS
<CAPTION>
Three
Months Nine Months
Ended Ended
September 30 September 30 Year Ended December 31
-------------------------------------------------------------------------------------
1995 1995 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Net income (loss) $177,360 $513,685 $612,931 $488,049 $279,843 $97,672 ($73,687)
Adjustments:
(a) Applicable income taxes (benefits) 115,288 337,981 397,708 327,407 228,526 55,176 (89,636)
(b) Fixed charges:
(1) Interest on borrowed funds 176,840 479,716 526,397 417,301 386,275 449,544 782,814
(2) 1/3 of rent 7,434 22,749 33,706 34,217 29,672 23,033 19,121
(3) Interest on deposits 264,346 771,167 764,186 744,080 1,076,368 1,480,395 1,343,417
(c) Preferred dividends 2,463 7,390 24,742 36,927 49,706 21,958 12,990
-------- --------- ---------- ---------- -------- -------- --------
(d) Adjusted earnings $743,731 $2,132,688 $2,359,670 $2,047,981 $2,050,390 $2,127,778 $1,995,019
-------- --------- ---------- ---------- -------- -------- --------
Fixed charges [b(1) + b(2) + b(3)+c] $451,083 $1,281,022 $1,349,031 $1,232,525 $1,542,021 $1,974,930 $2,158,342
-------- --------- ---------- ---------- -------- -------- --------
Adjusted earnings / fixed charges 1.65x 1.66x 1.75x 1.66x 1.33x 1.08x 0.92x*
-------- -------- ---------- ---------- -------- -------- --------
</TABLE>
- --------------------
* Note that earnings are inadequate to cover fixed charges, the deficiency being
$163,323 for both the ratio excluding and including interest on deposits.
