SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) February 21, 1996
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FLEET FINANCIAL GROUP,INC.
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(Exact name of registrant as specified in its charter)
RHODE ISLAND
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(State or other jurisdiction of incorporation)
1-6366 05-0341324
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(Commission File Number) (IRS Employer Identification No.)
One Federal Street, Boston, MA 02211
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 617-292-2000
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
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On February 21, 1996, Fleet Financial Group, Inc. ("Fleet")
issued and sold (a) to Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), Dean Witter Reynolds Inc., A.G. Edwards & Sons, Inc.,
PaineWebber Incorporated and Smith Barney Inc., as representatives of the
several underwriters (the "Series V Underwriters") named in the Underwriting
Agreement dated February 14, 1996, attached hereto as Exhibit 1(a), 11,000,000
Depositary Shares (the "Series V Depositary Shares"), each representing a one-
tenth interest in a share of Series V 7.25% Perpetual Preferred Stock, $1 par
value, of Fleet (the "Series V Preferred Stock") and (b) to Merrill Lynch, Bear,
Stearns & Co. Inc., Goldman, Sachs & Co. and Lehman Brothers Inc. (the "Series
VI Underwriters") pursuant to the Underwriting Agreement dated February 13,
1996, attached hereto as Exhibit 1(b), 3,000,000 Depositary Shares (the "Series
VI Depositary Shares", and together with the Series V Depositary Shares,
collectively, the "Depositary Shares"), each representing a one-fifth interest
in a share of Series VI 6.75% Perpetual Preferred Stock, $1 par value, of Fleet
(the "Series VI Preferred Stock", and together with the Series V Preferred
Stock, collectively, the "Preferred Stock").
The Depositary Shares were sold to the Series V Underwriters and Series VI
Underwriters, respectively, under Registration Statement No. 33-63631 at a price
to public of $25.00 per Series V Depositary Share and $50.00 per Series VI
Depositary Share, plus in each case, accrued dividends, if any, from February
21, 1996. Each of the Depositary Shares is entitled to all proportionate rights
and preferences of the Series V Preferred Stock and the Series VI Preferred
Stock, respectively, including a liquidation preference of $250 per share ($25
per Series V Depositary Share and $50 per Series VI Depositary Share) and
cumulative dividends at a rate of 7.25% of the liquidation preference per annum
of the Series V Preferred Stock (equivalent to $1.8125 per annum per Series V
Depositary Share) and 7.25% of the liquidation preference per annum of the
Series VI Preferred Stock (equivalent to $3.375 per annum per Series VI
Depositary Share). The amount of dividends payable in respect of the Series VI
Preferred Stock will be adjusted in the event of certain amendments to the
Internal Revenue Code of 1986, as amended (the "Code"), in respect of the
dividends received deduction.
The Series V Preferred Stock and the Series VI Preferred Stock is not
redeemable prior to April 15, 2001 and April 15, 2006, respectively.
Thereafter, the Series V Preferred Stock and Series VI Preferred Stock is
redeemable at Fleet's option in whole or in part, at $100 per share (equivalent
to $25 per Series V Depositary Share and $50 per Series VI Depositary Share),
plus, in each case, an amount equal to the sum of all accrued and unpaid
dividends thereon. In addition, the Series VI Preferred Stock may also be
redeemed prior to April 15, 2006, in whole, at the option of Fleet, in the event
of certain amendments to the Code in respect of the dividends received
deduction. The Preferred Stock will not be entitled to the benefit of any
sinking fund.
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Item 7. Financial Statements and Exhibits.
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The following exhibits are filed as part of this report:
Item 601
Exhibit Table
Reference Exhibit Title
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(1)(a) Underwriting Agreement dated February 14, 1996
among Fleet and Merrill Lynch, Dean Witter Reynolds Inc.,
A.G. Edwards & Sons, Inc., PaineWebber Incorporated and
Smith Barney Inc.
(1)(b) Underwriting Agreement dated February 13, 1996 among
Fleet and Merrill Lynch, Bear, Stearns & Co. Inc.,
Goldman, Sachs & Co. and Lehman Brothers Inc.
(4)(a) Certificate of Designations establishing the Series V
Preferred Stock
(4)(b) Certificate of Designations establishing the Series VI
Preferred Stock
(4)(c) Deposit Agreement dated February 21, 1996 between Fleet and
Fleet National Bank as to the Series V Preferred Stock and
Series V Depositary Shares
(4)(d) Deposit Agreement dated February 21, 1996 between Fleet and
Fleet National Bank as to the Series VI Preferred Stock and
Series VI Depositary Shares
(4)(e) Form of certificate for Series V Preferred Stock
(4)(f) Form of certificate for Series VI Preferred Stock
(4)(g) Form of depositary receipt for Series V Depositary
Shares (included as Exhibit A of Exhibit 4(c) hereto)
(4)(h) Form of depositary receipt for Series VI Depositary Shares
(included as Exhibit A to Exhibit 4(d) hereto)
(5) Opinion of Edwards & Angell
(23) Consent of Edwards & Angell (included in Exhibit 5)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed in its behalf
by the undersigned hereunto duly authorized.
FLEET FINANCIAL GROUP, INC.
By /s/ William C. Mutterperl
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William C. Mutterperl
Senior Vice President, Secretary
and General Counsel
Date: February 21, 1996
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EXHIBIT INDEX
Exhibit Index Description
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(1)(a) Underwriting Agreement dated February 14, 1996
among Fleet and Merrill Lynch, Dean Witter Reynolds Inc.,
A.G. Edwards & Sons, Inc., PaineWebber Incorporated and
Smith Barney Inc.
(1)(b) Underwriting Agreement dated February 13, 1996 among
Fleet and Merrill Lynch, Bear, Stearns & Co. Inc.,
Goldman, Sachs & Co. and Lehman Brothers Inc.
(4)(a) Certificate of Designations establishing the Series V
Preferred Stock
(4)(b) Certificate of Designations establishing the Series VI
Preferred Stock
(4)(c) Deposit Agreement dated February 21, 1996 between Fleet and
Fleet National Bank as to the Series V Preferred Stock and
Series V Depositary Shares
(4)(d) Deposit Agreement dated February 21, 1996 between Fleet and
Fleet National Bank as to the Series VI Preferred Stock and
Series VI Depositary Shares
(4)(e) Form of certificate for Series V Preferred Stock
(4)(f) Form of certificate for Series VI Preferred Stock
(4)(g) Form of depositary receipt for Series V Depositary
Shares (included as Exhibit A of Exhibit 4(c) hereto)
(4)(h) Form of depositary receipt for Series VI Depositary Shares
(included as Exhibit A to Exhibit 4(d) hereto)
(5) Opinion of Edwards & Angell
(23) Consent of Edwards & Angell (included in Exhibit 5)
Exhibit 1(a)
FLEET FINANCIAL GROUP INC.
Preferred Stock
($1 par value)
Underwriting Agreement
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New York, New York
February 14, 1996
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
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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
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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
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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
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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
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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
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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
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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 Regis-
tration 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
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7
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 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
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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
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8
Representatives, for the account of the Underwriters, on the 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
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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 may 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
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9
for the shares of Option Securities, and payment therefor, 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
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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.
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10
If the option provided for in Section 2(b) hereof is exercised
after the third business day prior to the 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
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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
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11
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 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
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12
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 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
<PAGE>
13
Securities) which is preferred as to the payment of dividends, or as
to the distribution of assets upon any 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
<PAGE>
14
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, 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
<PAGE>
15
provided in 12 U.S.C. Sec. 55 in the case of the Bank)
nonassessable, and, except as otherwise set 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;
<PAGE>
16
(v) 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;
(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
<PAGE>
17
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(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
<PAGE>
18
documents as they request for the purpose of enabling them to pass
upon such matters.
(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 LLP 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 cancellation
<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 cancellation 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: /s/ Douglas L. Jacobs
___________________________
Title: Treasurer
CONFIRMED AND ACCEPTED
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/ Lee Shavel
_____________________________________
Authorized Signatory
For itself and as Representatives
of the other Underwriters named in
Schedule II hereto.
<PAGE>
SCHEDULE I
Underwriting Agreement dated February 14, 1996
Registration Statement No. 33-63631
Representative(s): Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Dean Witter Reynolds Inc.
A.G. Edwards & Sons, Inc.
PaineWebber Incorporated
Smith Barney Inc.
Designation, Purchase Price and Description of Securities:
Designation: Depositary Shares, each representing a
one-tenth interest in a share of
Series V 7.25% Perpetual Preferred
Stock
Liquidation preference per share of Perpetual Preferred
Stock: $250
Number of shares: 11,000,000 Depositary Shares
1,100,000 Shares of Perpetual
Preferred Stock
Purchase price per Depositary Share (include accrued
dividends, if any): 9,120,000 shares at $24.2125
1,880,000 shares at $24.50
Type of Funds: Same-day
Over-allotment option: 1,650,000 Depositary Shares
165,000 shares of Perpetual
Preferred Stock
Depositary Receipt Arrangements: Yes [ X ] No [ ]
Name of Depositary: Fleet National Bank (Fleet-RI)
Date of Deposit Agreement: February 21, 1996
Fraction of a Security equal to one Depositary Share:
<PAGE>
31
One-Tenth
Closing Date, Time and Location:
Date: February 21, 1996
Time: 11:00 a.m., New York City time
Location: Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee: N/A
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all contracts: N/A
Date referred to in Section 4(f) after which the Company may offer or sell
debt securities issued or guaranteed by the Company or shares of any
class of preferred stock of the Company:
a) February 21, 1996 as to debt securities issued or guaranteed
by the Company, and
b) March 15, 1996 as to preferred stock, whether or not
represented by depositary shares, with similar terms to those offered
hereby (except for the Series VI 6.75% Perpetual Preferred Stock).
Modification of items to be covered by the letter from KPMG Peat Marwick
delivered pursuant to Section 5(e) at the Execution Time: None
<PAGE>
SCHEDULE II
Number of shares
of Securities to
Underwriters Be purchased
- ------------ ----------------
Merrill Lynch, Pierce, Fenner 1,530,000 Shares
& Smith Incorporated 1,530,000
Dean Witter Reynolds Inc. 1,530,000
A.G. Edwards & Sons, Inc. 1,530,000
PaineWebber Incorporated 1,530,000
Smith Barney Inc. 1,530,000
Robert W. Baird & Co. Incorporated 100,000
Bear, Stearns & Co. Inc. 100,000
Alex. Brown & Sons Incorporated 100,000
Dain Bosworth Incorporated 100,000
Dillon, Read & Co. Inc. 100,000
Donaldson, Lufkin & Jenrette 100,000
Securities Corporation 100,000
EVEREN Securities, Inc. 100,000
Morgan Stanley & Co. Incorporated 100,000
Oppenheimer & Co., Inc. 100,000
Piper Jaffray Inc. 100,000
Prudential Securities Incorporated 100,000
Raymond James & Associates, Inc. 100,000
Tucker Anthony Incorporated 100,000
Advest, Inc. 50,000
J.C. Bradford & Co. 50,000
JW Charles Securities, Inc. 50,000
Commerzbank Capital Markets Corporation 50,000
Cowen & Company 50,000
Craigie Incorporated 50,000
Crowell, Weedon & Co. 50,000
Davenport & Co. of Virginia, Inc. 50,000
Doft & Co., Inc. 50,000
Dougherty, Dawkins, Strand & Bigelow Inc. 50,000
Fahnestock & Co. Inc. 50,000
First Albany Corporation 50,000
First of Michigan Corporation 50,000
Furman Selz LLC 50,000
Gruntal & Co., Incorporated 50,000
J.J.B. Hilliard, W.L. Lyons, Inc 50,000
Interstate/Johnson Lane Corporation 50,000
Janney Montgomery Scott Inc. 50,000
<PAGE>
SCHEDULE II (continued)
Number of shares
of Securities to
Underwriters Be purchased
- ------------ ----------------
Josephthal Lyon & Ross Incorporated 50,000 Shares
Kennedy, Cabot & Co. 50,000
Legg Mason Wood Walker, Incorporated 50,000
McDonald & Company Securities, Inc. 50,000
McGinn, Smith & Co., Inc. 50,000
Mesirow Financial, Inc. 50,000
Morgan Keegan & Company, Inc. 50,000
David A. Noyes & Company 50,000
The Ohio Company 50,000
Olde Discount Corporation 50,000
Principal Financial Securities, Inc. 50,000
Pryor, McClendon, Counts & Co., Inc. 50,000
Rauscher Pierce Refsnes, Inc. 50,000
The Robinson-Humphrey Company, Inc. 50,000
Rodman & Renshaw, Inc. 50,000
Roney & Co. 50,000
Scott & Stringfellow, Inc. 50,000
Stifel, Nicolaus & Company, Incorporated 50,000
Sutro & Co. Incorporated 50,000
US Clearing Corp. 50,000
Utendahl Capital Partners, L.P. 50,000
Wheat, First Securities, Inc. 50,000
Yamaichi International (America), Inc. 50,000
_________________
Total. . . . . . . . . . 11,000,000 Shares
=================
Exhibit 1(b)
FLEET FINANCIAL GROUP INC.
Preferred Stock
($1 par value)
Underwriting Agreement
----------------------
New York, New York
February 13, 1996
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 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
<PAGE>
4
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 Regis-
tration 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
<PAGE>
7
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 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
<PAGE>
8
Representatives, for the account of the Underwriters, on the 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 may 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
<PAGE>
9
for the shares of Option Securities, and payment therefor, 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.
<PAGE>
10
If the option provided for in Section 2(b) hereof is exercised
after the third business day prior to the 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
<PAGE>
11
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 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
<PAGE>
12
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 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
<PAGE>
13
Securities) which is preferred as to the payment of dividends, or as
to the distribution of assets upon any 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
<PAGE>
14
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, 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
<PAGE>
15
provided in 12 U.S.C. Sec. 55 in the case of the Bank)
nonassessable, and, except as otherwise set 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;
<PAGE>
16
(v) 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;
(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
<PAGE>
17
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(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
<PAGE>
18
documents as they request for the purpose of enabling them to pass
upon such matters.
(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 LLP 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 cancellation
<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 sparty 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 cancellation 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: /s/ Douglas L. Jacobs
___________________________
Title: Treasurer
CONFIRMED AND ACCEPTED
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/ Lee Shavel
_____________________________________
Authorized Signatory
For itself and as Representatives
of the other Underwriters named in
Schedule II hereto.
<PAGE>
SCHEDULE I
Underwriting Agreement dated February 13, 1996
Registration Statement No. 33-63631
Representative(s): Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
Designation, Purchase Price and Description of Securities:
Designation: Depositary Shares, each representing a
one-fifth interest in a share of
Series VI 6.75% Perpetual Preferred
Stock
Liquidation preference per share of Perpetual Preferred
Stock: $250
Number of shares: 3,000,000 Depositary Shares
600,000 Shares of Perpetual Preferred Stock
Purchase price per Depositary Share (include accrued dividends, if
any): $49.00
Type of Funds: Same-day
Over-allotment option: 450,000 Depositary Shares
90,000 shares of Perpetual
Preferred Stock
Depositary Receipt Arrangements: Yes [ X ] No [ ]
Name of Depositary: Fleet National Bank (Fleet-RI)
Date of Deposit Agreement: February 21, 1996
Fraction of a Security equal to one Depositary Share:
One-fifth
<PAGE>
31
Closing Date, Time and Location:
Date: February 21, 1996
Time: 11:00 a.m., New York City time
Location: Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee: N/A
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all contracts: N/A
Date referred to in Section 4(f) after which the Company may offer or sell
debt securities issued or guaranteed by the Company, shares of any class
of preferred stock of the Company or other securities of the Company
underlying any convertible securities:
a) February 21, 1996 as to debt securities issued or guaranteed by
the Company, and
b) March 15, 1996 as to preferred stock, whether or not represented
by depositary shares, with similar terms to those offered hereby (except
for the Series V 7.25% Perpetual Preferred Stock).
Modification of items to be covered by the letter from KPMG Peat Marwick
delivered pursuant to Section 5(e) at the Execution Time: None
<PAGE>
SCHEDULE II
Number of shares
of Securities to
Underwriters Be purchased
- ------------ ----------------
Merrill Lynch, Pierce, Fenner & Smith 750,000
Incorporated 750,000
Bear, Stearns & Co. Inc. 750,000
Goldman, Sachs & Co. 750,000
Lehman Brothers Inc. 750,000
__________
Total. . . . . . . . . . . . . . . . . . . . . . 3,000,000
==========
Exhibit 4(a)
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 V 7.25% PERPETUAL PREFERRED STOCK
OF
FLEET FINANCIAL GROUP, INC.
-------------------
PURSUANT TO SECTION 7-1.1-15 OF THE
RHODE ISLAND BUSINESS CORPORATION ACT
-------------------
We, the undersigned, William C. Mutterperl and Marc C. Leslie, the Senior
Vice President and the Assistant Secretary, respectively, of FLEET 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 February 21,
1996, at which a quorum was present and acting throughout.
"RESOLVED, that pursuant to authority conferred upon the Board of Directors
(the "Board") of Fleet Financial Group, Inc., a Rhode Island corporation (the
"Corporation"), by the Restated Articles of Incorporation, as amended, (the
"Articles of Incorporation") of the Corporation, the Board hereby creates a
series of Preferred Stock of the Corporation to consist of 1,265,000 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 classes or series) as follows:
(a) Designation. The designation of the series of Preferred Stock shall be
"Series V 7.25% Perpetual Preferred Stock" (hereinafter called this "Series")
and the number of shares constituting this Series is one million two hundred
sixty-five thousand (1,265,000).
(b) Dividend Rate.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 7.25% per annum computed on the basis of an
issue price thereof of $250 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
January 15, April 15, July 15 and October 15 of each year, commencing April
15, 1996 (a "Dividend Payment Date"). 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
<PAGE>
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 April 15, 1996, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
(c) Redemption.
(1) The shares of this Series shall not be redeemable prior to April 15,
2001. On and after April 15, 2001, 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 $250 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 pursuant to subsection (1), 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
pursuant to subsections (1) or (2), 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.
2
<PAGE>
(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 under either subsection (1)
or (2) above 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 applicable 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 $250 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.
(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:
3
<PAGE>
(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 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 any Voting Preferred) and the
holders of the Corporation's preferred stock of all classes and series
(other than 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 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 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 than 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,
4
<PAGE>
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 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 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.
5
<PAGE>
IN WITNESS WHEREOF, this Certificate has been made under the seal of Fleet
Financial Group, Inc., and has been signed by the undersigned, William C.
Mutterperl, its Senior Vice President, and Marc C. Leslie, its Assistant
Secretary, respectively, this 21st day of February, 1996.
FLEET FINANCIAL GROUP, INC.
[SEAL]
By /s/ William C. Mutterperl
...................................
(Senior Vice President)
By /s/ Marc C. Leslie
...................................
(Assistant Secretary)
STATE OF MASSACHUSETTS
COUNTY OF SUFFOLK
In said County and State on this 21st day of February, 1996, personally
appeared before me William C. Mutterperl and Marc C. Leslie, the Senior Vice
President and the Assistant Secretary, respectively, of Fleet 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 Financial Group, Inc.
By /s/ Marie Allen McCarthy
...................................
Notary Public
My Commission Expires: Oct. 6, 2000
6
Exhibit 4(b)
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 VI 6.75% PERPETUAL PREFERRED STOCK
OF
FLEET FINANCIAL GROUP, INC.
-------------------
PURSUANT TO SECTION 7-1.1-15 OF THE
RHODE ISLAND BUSINESS CORPORATION ACT
-------------------
We, the undersigned, William C. Mutterperl and Marc C. Leslie, the Senior
Vice President and the Assistant Secretary, respectively, of FLEET 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 February 21,
1996, at which a quorum was present and acting throughout.
"RESOLVED, that pursuant to authority conferred upon the Board of Directors
(the "Board") of Fleet Financial Group, Inc., a Rhode Island corporation (the
"Corporation"), by the Restated Articles of Incorporation, as amended (the
"Articles of Incorporation"), of the Corporation, the Board hereby creates a
series of Preferred Stock of the Corporation to consist of 690,000 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, option 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 classes or series) as follows:
(a) Designation. The designation of the series of Preferred Stock shall be
"Series VI 6.75% Perpetual Preferred Stock" (hereinafter called this "Series")
and the number of shares constituting this Series is Six Hundred Ninety Thousand
(690,000).
(b) Dividend Rate.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 6.75% per annum computed on the basis of an
issue price thereof of $250 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
January 15, April 15, July 15 and October 15 of each year, commencing April
15, 1996 (a "Dividend Payment Date"). 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) If one or more amendments to the Internal Revenue Code of 1986, as
amended (the "Code"), are enacted that change the percentage of the
dividends received deduction (currently 70%) as specified in Section
243(a)(1) of the Code or any successor provision (the "Dividends Received
Percentage"), the amount of each dividend payable per share of this Series
for dividend payments made on or after the date of enactment of such change
shall be adjusted by multiplying the amount of the dividend payable
determined as described above (before adjustment) by a factor
<PAGE>
which shall be the number determined in accordance with the following
formula (the "DRD Formula"), and rounding the result to the nearest cent:
1 - .35 (1 - .70)
-------------------
1 - .35 (1 - DRP)
For the purposes of the DRD Formula, "DRP" means the Dividends Received
Percentage applicable to the dividend in question. No amendment to the Code,
other than a change in the percentage of the dividends received deduction
set forth in Section 243(a)(1) of the Code or any successor provision, will
give rise to an adjustment. Notwithstanding the foregoing provisions, in the
event that, with respect to any such amendment, the Corporation shall
receive either an unqualified opinion of independent recognized tax counsel
or a private letter ruling or similar form of authorization from the
Internal Revenue Service to the effect that such an amendment would not
apply to dividends payable on shares of this Series, then any such amendment
shall not result in the adjustment provided for pursuant to the DRD Formula.
The Corporation's calculation of the dividends payable as so adjusted and as
certified accurate as to calculation and reasonable as to method by the
independent certified public accountants then regularly engaged by the
Corporation shall be final and not subject to review.
If any amendment to the Code which reduces the Dividends Received
Percentage is enacted after a dividend payable on a Dividend Payment Date
has been declared, the amount of dividend payable on such Dividend Payment
Date will not be increased; but instead, an amount, equal to the excess of
(x) the product of the dividends paid by the Corporation on such Dividend
Payment Date and the DRD Formula (where the DRP used in the DRD Formula
would be equal to the reduced Dividends Received Percentage) and (y) the
dividends paid by the Corporation on such Dividend Payment Date, will be
payable to holders of record on the next succeeding Dividend Payment Date in
addition to any other amounts payable on such date.
In addition, if prior to May 16, 1996, an amendment to the Code is
enacted that reduces the Dividends Received Percentage and such reduction
retroactively applies to a Dividend Payment Date as to which the Corporation
previously paid dividends on shares of this Series (each an "Affected
Dividend Payment Date"), the Corporation will pay (if declared) additional
dividends (the "Additional Dividends") on the next succeeding Dividend
Payment Date (or if such amendment is enacted after the dividend payable on
such Dividend Payment Date has been declared, on the second succeeding
Dividend Payment Date following the date of enactment) to holders of record
on such succeeding Dividend Payment Date in an amount equal to the excess of
(x) the product of the dividends paid by the Corporation on each Affected
Dividend Payment Date and the DRD Formula (where the DRP used in the DRD
Formula would be equal to the Dividends Received Percentage applied to each
Affected Dividend Payment Date) and (y) the dividends paid by the
Corporation on each Affected Dividend Payment Date.
Additional Dividends will not be paid in respect of the enactment of any
amendment to the Code on or after May 16, 1996 which retroactively reduces
the Dividends Received Percentage, or if prior to May 16, 1996, such
amendment would not result in an adjustment due to the Corporation having
received either an opinion of counsel or tax ruling referred to in the third
preceding paragraph. The Corporation will only make one payment of
Additional Dividends.
In the event that the amount of dividend payable per share of this
Series shall be adjusted pursuant to the DRD Formula and/or Additional
Dividends are to be paid, the Corporation will cause notice of each such
adjustment and, if applicable, any Additional Dividends, to be sent to each
holder of record of the shares of this Series at such holder's address as
the same appears on the stock register of the Corporation.
2
<PAGE>
(3) 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.
(4) 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 subsection (3) 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.
(5) Dividends payable on this Series for any period, including the
period from the original issue of such shares until April 15, 1996, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
(c) Redemption.
(1) (A) The shares of this Series shall not be redeemable prior to April
15, 2006. On and after April 15, 2006, 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 $250 per share, plus accrued and unpaid
dividends thereon to the date fixed for redemption.
(B) In the event that fewer than all the outstanding shares of this
Series are to be redeemed pursuant to subsection (1)(A), 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.
(2) (A) Notwithstanding subsection (1) above, if the Dividends Received
Percentage is equal to or less than 40% and, as a result, the amount of
dividends on the shares of this Series payable on any Dividend Payment Date
will be or is adjusted upwards as described in Section (b)(2) above, the
Corporation, at its option, may redeem all, but not less than all, of the
outstanding shares of this Series; provided, that within sixty days of the
date on which an amendment to the Code is enacted which reduces the
Dividends Received Percentage to 40% or less, the Corporation sends notice
to holders of shares of this Series of such redemption in accordance with
subsection (3) below.
3
<PAGE>
(B) Any redemption of the Perpetual Preferred Stock in accordance with
this subsection (2) shall be at the applicable redemption price set forth in
the following table, in each case plus accrued and unpaid dividends (whether
or not declared) thereon to the date fixed for redemption, including any
changes in dividends payable due to changes in the Dividends Received
Percentage and Additional Dividends, if any.
REDEMPTION PERIOD REDEMPTION PRICE
----------------- ----------------
February 21, 1996 to April 14, 1997..... $262.50
April 15, 1997 to April 14, 1998........ 261.25
April 15, 1998 to April 14, 1999........ 260.00
April 15, 1999 to April 14, 2000........ 258.75
April 15, 2000 to April 14, 2001........ 257.50
April 15, 2001 to April 14, 2002........ 256.25
April 15, 2002 to April 14, 2003........ 255.00
April 15, 2003 to April 14, 2004........ 253.75
April 15, 2004 to April 14, 2005........ 252.50
April 15, 2005 to April 14, 2006........ 251.25
On or after April 15, 2006.............. 250.00
(3) In the event the Corporation shall redeem shares of this Series
pursuant to subsections (1) or (2) above, 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 under either subsection (1)
or (2) above 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 applicable 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.
4
<PAGE>
(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 $250 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.
(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
5
<PAGE>
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 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 any Voting Preferred) and the
holders of the Corporation's preferred stock of all classes and series
(other than 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 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 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 than 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 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.
6
<PAGE>
(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 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.
IN WITNESS WHEREOF, this Certificate has been made under the seal of Fleet
Financial Group, Inc., and has been signed by the undersigned, William C.
Mutterperl, its Senior Vice President, and Marc C. Leslie, its Assistant
Secretary, respectively, this 21st day of February, 1996.
FLEET FINANCIAL GROUP, INC.
[SEAL]
By /s/ William C. Mutterperl
...................................
(Senior Vice President)
By /s/ Marc C. Leslie
...................................
(Assistant Secretary)
STATE OF MASSACHUSETTS
COUNTY OF SUFFOLK
In said County and State on this 21st day of February, 1996, personally
appeared before me William C. Mutterperl and Marc C. Leslie, the Senior Vice
President and Assistant Secretary, respectively, of Fleet 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 Financial Group, Inc.
By /s/ Marie Allen McCarthy
...................................
Notary Public
My Commission Expires: Oct. 6, 2000
7
Exhibit 4(c)
FLEET FINANCIAL GROUP, INC.
FLEET NATIONAL BANK, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_______________
Deposit Agreement
relating to
Series V 7.25% Perpetual Preferred Stock
of Fleet Financial Group, Inc.
________________
Dated as of February 21, 1996
<PAGE>
TABLE OF CONTENTS
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary Shares . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary's Agent . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary's Office . . . . . . . . . . . . . . . . . . . . . . . . 1
Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Record holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof . . . . . . 2
SECTION 2.03. Redemption of Stock . . . . . . . . . . . 3
SECTION 2.04. Registration of Transfer of Receipts . . . 4
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipt and Withdrawal of
Stock . . . . . . . . . . . . . . . . . 4
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts . . . . . . . . . . . . . . . . 4
SECTION 2.07. Lost Receipts, etc. . . . . . . . . . . . 5
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts . . . . . . . . . . . 5
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . . . . 5
i
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Page
----
SECTION 3.02. Payment of Taxes or Other Governmental
Charges . . . . . . . . . . . . . . . . 5
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . 5
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions . . . . . . . . . . . . 5
SECTION 4.02. Distributions Other than Cash . . . . . . 6
SECTION 4.03. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . . . 6
SECTION 4.04. Notice of Dividends, etc.; Fixing of
Record Date for Holders of Receipts . . . 6
SECTION 4.05. Voting Rights . . . . . . . . . . . . . 7
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations,
etc. . . . . . . . . . . . . . . . . . . 7
SECTION 4.07. Inspection of Reports . . . . . . . . . . 7
SECTION 4.08. Lists of Receipts Holders . . . . . . . . 7
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, and
Transfer Books by the Depositary;
Registrar . . . . . . . . . . . . . . . 8
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company . . 8
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and
the Company . . . . . . . . . . . . . . 8
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary . . . . . . . . . . . . . . . 9
SECTION 5.05. Corporate Notices and Reports . . . . . . 9
SECTION 5.06. Indemnification by the Company . . . . . . 9
SECTION 5.07. Charges and Expenses . . . . . . . . . . . 10
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . 10
SECTION 6.02. Termination . . . . . . . . . . . . . . . 10
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . 10
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . 10
SECTION 7.03. Invalidity of Provisions . . . . . . . . . 10
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . 11
SECTION 7.05. Depositary's Agents . . . . . . . . . . . 11
SECTION 7.06. Holders of Receipts Are Parties . . . . . 11
ii
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Page
----
SECTION 7.07. Governing Law . . . . . . . . . . . . . . 11
SECTION 7.08. Inspection of Deposit Agreement . . . . . 11
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . 11
Testimonium . . . . . . . . . . . . . . . . . . . . . 12
Signatures . . . . . . . . . . . . . . . . . . . . . 12
Exhibit A: Depositary Receipt . . . . . . . . . . . . . . . . . . A-1
iii
<PAGE>
DEPOSIT AGREEMENT
dated as of February 21, 1996,
among
FLEET FINANCIAL GROUP, INC.,
a Rhode Island corporation,
Fleet National Bank, a national banking association
and the holders
from time to time of the Receipts
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of Series V 7.25% Perpetual Preferred
Stock; $1 par value, of FLEET FINANCIAL GROUP, INC. with the Depositary (as
hereinafter defined) for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares, each representing a one-tenth interest in respect of the
Stock (as hereinafter defined) so deposited;
WHEREAS the Receipts are to be substantially in the form of Exhibit A
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designation filed with the
Secretary of State of Rhode Island establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean Fleet Financial Group, Inc., a Rhode Island
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean Fleet National Bank, a national banking
association, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a one-
tenth interest in a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the Depositary in
Providence, Rhode Island, at which at any particular time its depositary receipt
business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record holder" as applied with respect to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
<PAGE>
"Registrar" shall mean any bank or trust company which shall be appointed
to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's Series V 7.25 % Perpetual
Preferred Stock, $1 par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered for deposit in
compliance with Section 2.02, shall execute and deliver temporary Receipts which
are printed, lithographed, typewritten, mimeographed or otherwise substantially
of the tenor of the definitive Receipts in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Depositary's Office, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits as
definitive Receipts under this Agreement, and with respect to the Stock.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, that such signature may be
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company or purchasers of the Stock from time to time may from time to time
deposit shares of Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument
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of transfer or endorsement, in form satisfactory to the Depositary, together
with all such certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement, and together with a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order, a Receipt or Receipts for the
number of Depositary Shares representing interests in such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, or in
the name of such other purchaser, as applicable, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall execute and deliver, to or
upon the order of the person or persons named in the written order delivered to
the Depositary referred to in the first paragraph of this Section, a Receipt for
the number of Depositary Shares relating to the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt at the Depositary's Office
or such other offices, if any, as the Depositary may designate. Delivery at
other offices shall be at the risk and expense of the person requesting such
delivery.
SECTION 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 30 nor more than 60 days notice of the date of such
proposed redemption of Stock in accordance with Section (c) of the Certificate.
On the date of such redemption, provided that the Company shall then have paid
in full to the Depositary the redemption price of the Stock to be redeemed, the
Depositary shall redeem the Depositary Shares relating to such Stock. The
Depositary shall mail notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares relating to the Stock to be
redeemed, first-class postage prepaid, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares
(the "Redemption Date"), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accumulate at the close of business on such Redemption Date. In case less
than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata as may be
determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Stock to be redeemed by it as set forth in the Company's notice provided for
in the preceding paragraph) all dividends in respect of the shares of Stock so
called for redemption shall cease to accumulate, the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, all
rights of the holders of Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the extent of such Depositary
Shares, cease and terminate and, upon surrender in accordance with such notice
of the Receipts evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed by the Depositary at a redemption price per Depositary
Share equal to one-tenth of the redemption price per share paid in respect of
the shares of Stock plus all money and other property, if any, underlying such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If less than all Depositary Shares evidenced by a Receipt are called for
redemption, the Depositary will deliver to the holder of such Receipt upon its
surrender to the Depositary, together with the redemption payment, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
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SECTION 2.04. Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of Receipt
and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Any holder of a Receipt or Receipts representing any whole number of
deposited shares of Stock may withdraw such shares of Stock and all money and
other property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of shares of Stock and all
money and other property, if any, represented by the Receipt or Receipts so
surrendered for withdrawal, but holders of such shares of Stock will not
thereafter be entitled to deposit such shares of Stock hereunder or to receive
Depositary Shares therefor. If a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of deposited Depositary Shares
representing the number of shares of Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of shares of Stock and such
money and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Section 2.03) upon his order, a new Receipt evidencing such excess
number of Depositary Shares. Delivery of the shares of Stock and money and
other property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate.
If the shares of Stock and the money and other property being withdrawn are
to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of the Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be
appropriately endorsed or accompanied by a properly executed instrument of
transfer.
Delivery of the shares of Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of shares of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
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SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of his or her ownership thereof
and (ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the distribution of any dividend or other
distribution on the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Changes. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer of
any Receipt and delivery of all money or other property, if any, represented by
the Depositary Shares evidenced by such Receipt may be refused until any such
payment due is made, and any dividends, interest payments or other distributions
may be withheld or all or any part of the Stock or other property underlying the
Depositary Shares evidenced by such Receipt and not theretofore sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of receipts on the record
date fixed pursuant to Section 4.04 such amount of such dividend or distribution
as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required to
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, 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 distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
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SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts of the securities or property
received by it as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders, in
any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.02, be distributed
or made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash.
If registration under the Securities Act of 1933 of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective, or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders
of Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts who shall be
entitled to receive a distribution in respect of such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale
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thereof, or to give instructions for the exercise of voting rights at any such
meeting, or to receive notice of such meeting or for any other appropriate
reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement informing holders of Receipts that they may instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Stock underlying their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give their
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on such record date, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted, in accordance with
the instructions set forth in such requests, the maximum number of whole shares
of Stock underlying the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to such Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the Stock underlying the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation or
sale of all or substantially all the Company's assets affecting the Company or
to which it is a party, the Depositary may in its discretion with the approval
of, and shall upon the instructions of, the Company, and (in either case) in
such manner as the Depositary may deem equitable, (i) make such adjustments in
(a) the fraction of an interest in one share of Stock underlying one Depositary
Share and (b) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effects of such change in par or stated value, split-up, combination
or other reclassification of Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation or sale and (ii) treat any securities
which shall be received by the Depositary in exchange for or upon conversion or
in respect of the Stock as new deposited securities so received in exchange for
or upon conversion or in respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of Stock or any such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with instructions to
convert, exchange or surrender the shares of Stock attributable thereto into or
for, as the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Stock attributable to such
Receipts was converted or for which such Stock was exchanged or surrendered
after giving effect to such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make available
for inspection by holders of Receipts at the Depositary's Office, and at such
other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. List of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Stock of all persons in
whose names Receipts are registered on the books of the Depositary or
Registrar, as the case may be.
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ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts,
provided, that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an Owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Articles of Incorporation (including the
Certificate), as amended to date (the "Articles of Incorporation"), or by reason
of any act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, the Depositary's Agent, the Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed; or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the gross negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Receipts other than for
its gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
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Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary's Agent, any Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote, as long as any such action or nonaction is in good faith. The
Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Depositary or any Registrar. The Depositary will
indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their gross
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Receipts. The Depositary may also act as transfer agent
or registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it
will transmit to the record holders of Receipts, in each case at the address
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law, the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company's Articles of Incorporation (including the
Certificate) to be furnished by the Company to holders of Stock. Such
transmission will be at the Company's expense.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against,
and hold each of them harmless from, any loss, liability or expense (including
the costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with the Agreement and the Receipts (a) by
the Depositary, any Registrar or any of their respective agents (including any
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Depositary's Agent), except for any liability arising out of gross negligence or
bad faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Receipts or the Stock pursuant to the provisions hereof.
SECTION 5.07. Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all charges of the
Depositary in connection with the initial deposit of the Stock and the initial
issuance of the Depositary Shares, and redemption of the Stock at the option of
the Company and all withdrawals of the shares of Stock by owners of Depositary
Shares. All other transfer and other taxes and governmental charges shall be at
the expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
once every three months or at such other intervals as the Company and the
Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03 or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, and Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
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and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at One Federal Street, Boston,
Massachusetts 02211, to the attention of the Treasurer, or at any other address
of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at 111
Westminster Street, Providence, Rhode Island 02903, or at any other address of
which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram or telex confirmed
by letter, addressed to such record holder at the address of such record holder
as it appears on the books of the Depositary, or if such holder shall have filed
with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex message received by it from the
other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect of the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF RHODE
ISLAND.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
FLEET FINANCIAL GROUP, INC.
By: /s/ William C. Mutterperl
____________________________________
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ John R. Rodehorst
_____________________________________
Title: Assistant Treasurer
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EXHIBIT A
THE DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT ARE NOT SAVINGS ACCOUNTS,
DEPOSITS OR OTHER OBLIGATIONS OF FLEET NATIONAL BANK, THE DEPOSITARY HEREUNDER,
OR OF ANY OTHER BANK OR NONBANK SUBSIDIARY OF FLEET FINANCIAL GROUP, INC. AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE
FUND OR ANY OTHER GOVERNMENT AGENCY.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING AN INTEREST IN ONE-TENTH OF
A SHARE OF SERIES V 7.25% PERPETUAL PREFERRED STOCK
($1 Par Value)
OF
FLEET FINANCIAL GROUP, INC.
(Incorporated under the Laws of the State of Rhode Island)
_______________
Depositary Shares
(each Depositary Share represents an interest
in one-tenth of a share of Series V 7.25%
Perpetual Preferred Stock ($1 par value))
1. Fleet National Bank, a national banking association with an office at
the time of the execution of the Deposit Agreement (as defined below) at 111
Westminster Street, Providence, Rhode Island 02903 (the "Depositary's Office")
as Depositary (the "Depositary"), hereby certifies that [ ] is the
registered owner of [ ] Depositary Shares ("Depositary Shares") each
Depositary Share representing an interest in one-tenth (1/10) of a share of
Series V 7.25% Perpetual Preferred Stock, $1 par value (the "Stock"), of Fleet
Financial Group, Inc., a corporation duly organized and existing under the laws
of the State of Rhode Island (the "Company"). Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, through the Depositary to all the rights and preferences of the
Stock relating thereto, including dividend, voting, conversion, redemption and
liquidation rights contained in the Certificate of Designations adopted by the
Company's Board of Directors setting forth the number, terms, powers,
designations, rights, preferences, qualifications, restrictions and limitations
of the Stock (the "Certificate"), copies of which are on file at the
Depositary's Office.
2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of February 21, 1996 (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the
Depositary's Office) sets forth the rights of holders of Receipts and the rights
and duties of the Depositary and the Company in respect of the Stock deposited,
and any and all other property and cash deposited from time to time thereunder.
The statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall be permitted and shall elect,
under the Certificate, to redeem shares of the Stock, it shall give the
Depositary not less than 30 nor more than 60 days notice thereof. The
Depositary shall mail notice of such redemption and the simultaneous redemption
of the corresponding Depositary Shares not less than 30 and not more than 60
days prior to the date fixed for redemption to the holders of record of Receipts
representing
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the number of Depositary Shares to be redeemed. Each such notice shall state:
(a) the date of such proposed redemption; (b) the number of Depositary Shares to
be redeemed; (c) the redemption price (which shall include full cumulative
dividends thereon to the redemption date); (d) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (e) that dividends in respect of the Stock underlying the
Depositary Shares to be redeemed will cease to accumulate at the close of
business on such redemption date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Depositary to
be equitable. From and after the date set for redemption, all dividends in
respect of the Depositary Shares so called for redemption shall cease to accrue,
such Depositary Shares shall no longer be deemed outstanding and all rights of
the holders of Receipts representing such Depositary Shares (except the right to
receive the redemption price) shall cease and terminate. From and after the
redemption date, upon surrender in accordance with the redemption notice of the
Receipts representing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at the redemption price per share equal to one-
tenth (1/10) of the redemption price per share paid in respect of the shares of
Stock plus any money or other property relating thereto.
4. Transfer, Split-ups, Combinations, Surrender of Receipts. This Receipt
is transferable on the books of the Depositary upon surrender of this Receipt to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer, and upon such transfer, the Depositary shall execute a
new Receipt to or upon the order of the person entitled thereto, as provided in
the Deposit Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt, representing the same aggregate
number of Depositary Shares as the Receipt or Receipts surrendered. Any holder
of this Receipt may surrender this Receipt at the Depositary's Office or at such
other offices that the Depositary may designate to withdraw shares of Stock and
all money and other property, if any, underlying the Depositary Shares
represented by this Receipt. As a condition precedent to any transfer or
surrender for exchange of this Receipt, the Depositary, any of the Depositary's
Agents or the Company may require payment of certain charges or expenses or the
production of evidence satisfactory to it as to the identity and genuineness of
any signature and may also require compliance with such regulations, if any, as
the Depositary or the Company may establish consistent with the provisions of
the Deposit Agreement.
5. Suspension of Delivery, Transfer, etc. The transfer or surrender of
this Receipt may be suspended during any period when the register of
stockholders of the Company is closed or if any such action is deemed necessary
or advisable by the Depositary, any agent of the Depositary, or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of the
Deposit Agreement.
6. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to this Receipt, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder hereof. Transfer of this
Receipt may be refused until such payment is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of the Stock
or other property relating to this Receipt and not theretofore sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied to any
payment of such tax or charge, the holder of this Receipt remaining liable for
any deficiency.
7. Warranty by Company. The Company has warranted that the Stock when
issued, will be validly issued, fully paid and nonassessable.
8. Amendment. The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable, provided, however, that no such amendment which shall materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of at least a majority of
the Depositary Shares then outstanding. A holder of a Receipt at the time any
such amendment so becomes effective shall be deemed, by continuing to hold such
receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby.
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9. Charges of Depositary. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements, and all charges of the Depositary in connection with
the initial deposit of the Stock and the initial issuance of the Depositary
Shares and redemption of the Stock at the option of the Company. All other
transfer and other taxes and other governmental charges shall be at the expense
of holders of Depositary Shares. All other charges and expenses of the
Depositary and any agent of the Depositary will be paid upon consultation and
agreement between the Depositary and the Company.
10. Title to Receipts. This Receipt (and the Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a properly executed instrument
of transfer, is transferable by delivery with the same effect as in the case of
a negotiable instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distributions of dividends or other distributions or to any notice
provided for in the Deposit Agreement, and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the Receipt holders as nearly as practicable in proportion to the number of
Depositary Shares held by them; provided, however, that the amount distributed
will be reduced by any amounts required to be withheld by the Company or the
Depositary on account of taxes. Other distributions received on the Stock may be
distributed to holders of Receipts as provided in the Deposit Agreement.
12. Fixing of Record Date. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered, with
respect to Stock, or whenever the Depositary shall receive notice of any meeting
at which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice, the Depositary shall in each instance fix a record date
(which shall be the record date fixed by the Company with respect to the Stock),
for the determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting.
13. Voting Rights. Upon receipt of notice of any meeting at which holders
of Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Receipts a notice which shall contain
(a) such information as is contained in such notice of meeting and (b) a
statement informing holders of Receipts that they may instruct the Depositary as
to the exercise of the voting rights pertaining to the amount of Stock relating
to their respective Depositary Shares and a brief statement as to the manner in
which such instructions may be given. Upon the written request of a holder of a
Receipt on such record date, the Depositary shall endeavor, insofar as
practicable, to vote or cause to be voted the amount of Stock relating to such
Receipt in accordance with the instructions set forth in such request. In the
absence of specific instructions from the holder of a Receipt, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of Receipts) to the extent of the Stock underlying the Depositary Shares
evidenced by such Receipt.
14. Changes Affecting Deposited Securities. Upon any change in par or
stated value, split-up, combination or any other reclassification of the Stock
or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, or upon the sale
of all or substantially all the Company's assets, the Depositary may in its
discretion with the approval of the Company, and in such manner as the
Depositary may deem equitable, (a) make such adjustments in (i) the fraction of
an interest in one share of Stock underlying one Depositary Share and (ii) the
ratio of the redemption price of a share of Stock, in each case as may be
necessary fully to reflect the effect of such change and (b) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion or in respect of the Stock as new deposited securities so received in
exchange for or upon conversion or in respect of such Stock. In any such case
the Depositary may in its discretion, with the approval of the Company, execute
and deliver additional Receipts, or may call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities.
15. Liability and Obligations of the Depositary, the Depositary's Agent or
the Company. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company assumes any obligation or shall be subject to
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any liability under the Deposit Agreement to any holder of any Receipt, other
than for its gross negligence or willful misconduct. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Articles of Incorporation, as amended
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond their control, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Receipt by
reasons of nonperformance or delay, caused as aforesaid, in performance of any
act or thing which by the terms of the Deposit Agreement it is provided shall
or may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement, other than
for its gross negligence or willful misconduct. Neither the Depositary nor
any Depositary's Agent nor the Company assumes any obligation or shall be
subject to any liability under the Deposit Agreement to holders of Receipts
other than to use its best judgment and good faith in the performance of such
duties as are specifically set forth in the Deposit Agreement. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
be under any obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of the Stock, the Depositary Shares or the
Receipts, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished.
The Deposit Agreement contains various other exculpatory, indemnification and
related provisions, to which reference is hereby made.
16. Resignation and Removal of Depositary. The Depositary may at any time
(a) resign by written notice of its election to do so delivered to the Company,
such resignation to take effect upon the appointment of a successor Depositary
and its acceptance of such appointment, or (b) be removed by the Company
effective upon the appointment of a successor Depositary and its acceptance of
such appointment.
17. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary only upon or after the occurrence of
any of the following events: (a) all outstanding Depositary Shares shall have
been redeemed or (b) there shall have been made a final distribution in respect
of the Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution shall have been distributed to the holders of
Receipts. Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations thereunder except for its obligations to the
Depositary with respect to indemnification, charges and expenses.
18. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL RIGHTS
HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF RHODE ISLAND.
This receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been authenticated manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and, if authenticated by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING CERTAIN
PROVISIONS OF THE DEPOSIT AGREEMENT WHICH APPEARS IN THE DEPOSITARY RECEIPTS.
THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY,
GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES
OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORDHOLDERS OF THE DEPOSITARY
RECEIPTS TO THE DEPOSITARY SHARES.
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A COPY OF THE DEPOSIT AGREEMENT AND A FULL STATEMENT OF THE DESIGNATION,
RELATIVE RIGHTS, INTERESTS, PREFERENCES AND RESTRICTIONS OF THE STOCK UNDERLYING
THE DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT AND OF EACH CLASS OR SERIES OF
STOCK THAT THE COMPANY IS AUTHORIZED TO ISSUE WILL BE FURNISHED BY THE COMPANY,
WITHOUT CHARGE, TO EACH HOLDER OF A RECEIPT UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY, ONE FEDERAL STREET, BOSTON, MA 02211.
Dated:
FLEET NATIONAL BANK
Depositary and Registrar
By
------------------------------
Authorized Signature
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____________________
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - __________Custodian__________
(Cust) (Minor)
under Uniform Gift to Minors
Act______________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ______________________________________hereby sell,
assign and transfer unto
_______________________________________________________________________________
Please Print or Type Name and Address Including Zip Code of Assignee
_______________________________________________________________________________
Insert Social Security or Other
Identifying Number of Assignee
_______________________________________
| |
|______________________________________|
______________________________________________________________Depositary Shares
represented by the written Receipt, and do hereby irrevocably constitute and
appoint
_______________________________________________________________________Attorney
to transfer the said Receipts on the books of the within-named Dispositary with
full power of substitution in the premises.
Dated:______________________________ Signature_____________________________
NOTE: The signature of this
assignment must correspond
with the name(s) as written
upon the face of the Receipt
in every particular, without
alteration or enlargement, or
any change whatsoever.
A-6
Exhibit 4(d)
FLEET FINANCIAL GROUP, INC.
FLEET NATIONAL BANK, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_______________
Deposit Agreement
relating to
Series VI 6.75% Perpetual Preferred Stock
of Fleet Financial Group, Inc.
________________
Dated as of February 21, 1996
<PAGE>
TABLE OF CONTENTS
Page
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary Shares . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary's Agent . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary's Office . . . . . . . . . . . . . . . . . . . . . . . . 1
Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Record holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. . . . . . . 2
SECTION 2.03. Redemption of Stock . . . . . . . . . . . 3
SECTION 2.04. Registration of Transfer of Receipts . . . 4
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of
Stock . . . . . . . . . . . . . . . . . 4
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts . . . . . . . . . . . . . . . . 4
SECTION 2.07. Lost Receipts, etc. . . . . . . . . . . . 5
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts . . . . . . . . . . . . . . . . 5
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . . . 5
i
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SECTION 3.02. Payment of Taxes or Other Governmental
Charges . . . . . . . . . . . . . . . . 5
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . 5
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions . . . . . . . . . . . . 5
SECTION 4.02. Distributions Other than Cash . . . . . . 6
SECTION 4.03. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . . . 6
SECTION 4.04. Notice of Dividends, etc.; Fixing of
Record Date for Holders of Receipts . . . 6
SECTION 4.05. Voting Rights . . . . . . . . . . . . . 7
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications, Recapitalizations,
etc. . . . . . . . . . . . . . . . . . . 7
SECTION 4.07. Inspection of Reports . . . . . . . . . . 7
SECTION 4.08. Lists of Receipts Holders . . . . . . . . 7
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, and
Transfer Books by the Depositary;
Registrar . . . . . . . . . . . . . . . 8
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company . . 8
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and
the Company . . . . . . . . . . . . . . 8
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary . . . . . . . . . . . . . . . 9
SECTION 5.05. Corporate Notices and Reports . . . . . . 9
SECTION 5.06. Indemnification by the Company . . . . . . 9
SECTION 5.07. Charges and Expenses . . . . . . . . . . . 10
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . 10
SECTION 6.02. Termination . . . . . . . . . . . . . . . 10
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . 10
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . 10
SECTION 7.03. Invalidity of Provisions . . . . . . . . . 10
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . 11
SECTION 7.05. Depositary's Agents . . . . . . . . . . . 11
SECTION 7.06. Holders of Receipts Are Parties . . . . . 11
ii
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SECTION 7.07. Governing Law . . . . . . . . . . . . . . 11
SECTION 7.08. Inspection of Deposit Agreement . . . . . 11
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . 11
Testimonium . . . . . . . . . . . . . . . . . . . . . 12
Signatures . . . . . . . . . . . . . . . . . . . . . 12
Exhibit A: Depositary Receipt . . . . . . . . . . . . . . . . . . A-1
iii
<PAGE>
DEPOSIT AGREEMENT
dated as of February 21, 1996,
among
FLEET FINANCIAL GROUP, INC.,
a Rhode Island corporation,
Fleet National Bank, a national banking association
and the holders
from time to time of the Receipts
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of Series VI 6.75% Perpetual Preferred
Stock; $1 par value, of FLEET FINANCIAL GROUP, INC. with the Depositary (as
hereinafter defined) for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares, each representing a one-fifth interest in respect of the
Stock (as hereinafter defined) so deposited;
WHEREAS the Receipts are to be substantially in the form of Exhibit A
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designation filed with the
Secretary of State of Rhode Island establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean Fleet Financial Group, Inc., a Rhode Island
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean Fleet National Bank, a national banking
association, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a one-
fifth interest in a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the Depositary in
Providence, Rhode Island, at which at any particular time its depositary receipt
business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record holder" as applied with respect to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
1
<PAGE>
"Registrar" shall mean any bank or trust company which shall be appointed
to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's Series VI 6.75 % Perpetual
Preferred Stock, $1 par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered for deposit in
compliance with Section 2.02, shall execute and deliver temporary Receipts which
are printed, lithographed, typewritten, mimeographed or otherwise substantially
of the tenor of the definitive Receipts in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Depositary's Office, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits as
definitive Receipts under this Agreement, and with respect to the Stock.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, that such signature may be
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company or purchasers of the Stock from time to time may from time to time
deposit shares of Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument
2
<PAGE>
of transfer or endorsement, in form satisfactory to the Depositary, together
with all such certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement, and together with a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order, a Receipt or Receipts for the
number of Depositary Shares representing interests in such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, or in
the name of such other purchaser, as applicable, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall execute and deliver, to or
upon the order of the person or persons named in the written order delivered to
the Depositary referred to in the first paragraph of this Section, a Receipt for
the number of Depositary Shares relating to the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt at the Depositary's Office
or such other offices, if any, as the Depositary may designate. Delivery at
other offices shall be at the risk and expense of the person requesting such
delivery.
SECTION 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 30 nor more than 60 days notice of the date of such
proposed redemption of Stock in accordance with Section (c) of the Certificate.
On the date of such redemption, provided that the Company shall then have paid
in full to the Depositary the redemption price of the Stock to be redeemed, the
Depositary shall redeem the Depositary Shares relating to such Stock. The
Depositary shall mail notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares relating to the Stock to be
redeemed, first-class postage prepaid, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares
(the "Redemption Date"), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accumulate at the close of business on such Redemption Date. In case less
than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata as may be
determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Stock to be redeemed by it as set forth in the Company's notice provided for
in the preceding paragraph) all dividends in respect of the shares of Stock so
called for redemption shall cease to accumulate, the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, all
rights of the holders of Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the extent of such Depositary
Shares, cease and terminate and, upon surrender in accordance with such notice
of the Receipts evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed by the Depositary at a redemption price per Depositary
Share equal to one-fifth of the redemption price per share paid in respect of
the shares of Stock plus all money and other property, if any, underlying such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If less than all Depositary Shares evidenced by a Receipt are called for
redemption, the Depositary will deliver to the holder of such Receipt upon its
surrender to the Depositary, together with the redemption payment, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
3
<PAGE>
SECTION 2.04. Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of Receipt
and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Any holder of a Receipt or Receipts representing any whole number of
deposited shares of Stock may withdraw such shares of Stock and all money and
other property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of shares of Stock and all
money and other property, if any, represented by the Receipt or Receipts so
surrendered for withdrawal, but holders of such shares of Stock will not
thereafter be entitled to deposit such shares of Stock hereunder or to receive
Depositary Shares therefor. If a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of deposited Depositary Shares
representing the number of shares of Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of shares of Stock and such
money and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Section 2.03) upon his order, a new Receipt evidencing such excess
number of Depositary Shares. Delivery of the shares of Stock and money and
other property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate.
If the shares of Stock and the money and other property being withdrawn are
to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of the Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be
appropriately endorsed or accompanied by a properly executed instrument of
transfer.
Delivery of the shares of Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of shares of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
4
<PAGE>
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of his or her ownership thereof
and (ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the distribution of any dividend or other
distribution on the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Changes. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer of
any Receipt and delivery of all money or other property, if any, represented by
the Depositary Shares evidenced by such Receipt may be refused until any such
payment due is made, and any dividends, interest payments or other distributions
may be withheld or all or any part of the Stock or other property underlying the
Depositary Shares evidenced by such Receipt and not theretofore sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of receipts on the record
date fixed pursuant to Section 4.04 such amount of such dividend or distribution
as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required to
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, 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 distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
5
<PAGE>
SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts of the securities or property
received by it as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders, in
any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.02, be distributed
or made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts who shall be
entitled to receive a distribution in respect of such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale
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thereof, or to give instructions for the exercise of voting rights at any such
meeting, or to receive notice of such meeting or for any other appropriate
reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement informing holders of Receipts that they may instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Stock underlying their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give their
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on such record date, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted, in accordance with
the instructions set forth in such requests, the maximum number of whole shares
of Stock underlying the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to such Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the Stock underlying the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation or
sale of all or substantially all the Company's assets affecting the Company or
to which it is a party, the Depositary may in its discretion with the approval
of, and shall upon the instructions of, the Company, and (in either case) in
such manner as the Depositary may deem equitable, (i) make such adjustments in
(a) the fraction of an interest in one share of Stock underlying one Depositary
Share and (b) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effects of such change in par or stated value, split-up, combination
or other reclassification of Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation or sale and (ii) treat any securities
which shall be received by the Depositary in exchange for or upon conversion or
in respect of the Stock as new deposited securities so received in exchange for
or upon conversion or in respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of Stock or any such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with instructions to
convert, exchange or surrender the shares of Stock attributable thereto into or
for, as the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Stock attributable to such
Receipts was converted or for which such Stock was exchanged or surrendered
after giving effect to such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make available
for inspection by holders of Receipts at the Depositary's Office, and at such
other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. List of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Stock of all persons in
whose names Receipts are registered on the books of the Depositary or Registrar,
as the case may be.
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ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts,
provided, that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an Owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Articles of Incorporation (including the
Certificate), as amended to date (the "Articles of Incorporation"), or by reason
of any act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, the Depositary's Agent, the Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed; or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the gross negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Receipts other than for
its gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
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Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary's Agent, any Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote, as long as any such action or nonaction is in good faith. The
Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Depositary or any Registrar. The Depositary will
indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their gross
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Receipts. The Depositary may also act as transfer agent
or registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that it
will transmit to the record holders of Receipts, in each case at the address
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law, the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company's Articles of Incorporation (including the
Certificate) to be furnished by the Company to holders of Stock. Such
transmission will be at the Company's expense.
SECTION 5.06. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the costs and
expenses of defending itself) which may arise out of (i) acts performed or
omitted in connection with the Agreement and the Receipts (a) by the Depositary,
any Registrar or any of their respective agents (including any
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Depositary's Agent), except for any liability arising out of gross negligence or
bad faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Receipts or the Stock pursuant to the provisions hereof.
SECTION 5.07. Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all charges of the
Depositary in connection with the initial deposit of the Stock and the initial
issuance of the Depositary Shares, and redemption of the Stock at the option of
the Company and all withdrawals of the shares of Stock by owners of Depositary
Shares. All other transfer and other taxes and governmental charges shall be at
the expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
once every three months or at such other intervals as the Company and the
Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03 or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, and Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
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and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at One Federal Street, Boston,
Massachusetts 02211, to the attention of the Treasurer, or at any other address
of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at 111
Westminster Street, Providence, Rhode Island 02903, or at any other address of
which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram or telex confirmed
by letter, addressed to such record holder at the address of such record holder
as it appears on the books of the Depositary, or if such holder shall have filed
with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex message received by it from the
other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect of the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF RHODE
ISLAND.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
FLEET FINANCIAL GROUP, INC.
By: /s/ William C. Mutterperl
____________________________________
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ John R. Rodehorst
_____________________________________
Title: Assistant Treasurer
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EXHIBIT A
THE DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT ARE NOT SAVINGS ACCOUNTS,
DEPOSITS OR OTHER OBLIGATIONS OF FLEET NATIONAL BANK, THE DEPOSITARY HEREUNDER,
OR OF ANY OTHER BANK OR NONBANK SUBSIDIARY OF FLEET FINANCIAL GROUP, INC. AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE
FUND OR ANY OTHER GOVERNMENT AGENCY.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING AN INTEREST IN ONE-FIFTH OF
A SHARE OF SERIES VI 6.75% PERPETUAL PREFERRED STOCK
($1 Par Value)
OF
FLEET FINANCIAL GROUP, INC.
(Incorporated under the Laws of the State of Rhode Island)
_______________
Depositary Shares
(each Depositary Share represents an interest
in one-fifth of a share of Series VI 6.75%
Perpetual Preferred Stock ($1 par value))
1. Fleet National Bank, a national banking association with an office at
the time of the execution of the Deposit Agreement (as defined below) at 111
Westminster Street, Providence, Rhode Island 02903 (the "Depositary's Office")
as Depositary (the "Depositary"), hereby certifies that [ ] is the
registered owner of [ ] Depositary Shares ("Depositary Shares") each
Depositary Share representing an interest in one-fifth (1/5) of a share of
Series VI 6.75% Perpetual Preferred Stock, $1 par value (the "Stock"), of Fleet
Financial Group, Inc., a corporation duly organized and existing under the laws
of the State of Rhode Island (the "Company"). Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, through the Depositary to all the rights and preferences of the
Stock relating thereto, including dividend, voting, conversion, redemption and
liquidation rights contained in the Certificate of Designations adopted by the
Company's Board of Directors setting forth the number, terms, powers,
designations, rights, preferences, qualifications, restrictions and limitations
of the Stock (the "Certificate"), copies of which are on file at the
Depositary's Office.
2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of February 21, 1996 (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the
Depositary's Office) sets forth the rights of holders of Receipts and the rights
and duties of the Depositary and the Company in respect of the Stock deposited,
and any and all other property and cash deposited from time to time thereunder.
The statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall be permitted and shall elect,
under the Certificate, to redeem shares of the Stock, it shall give the
Depositary not less than 30 nor more than 60 days notice thereof. The
Depositary shall mail notice of such redemption and the simultaneous redemption
of the corresponding Depositary Shares not less than 30 and not more than 60
days prior to the date fixed for redemption to the holders of record of Receipts
representing
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the number of Depositary Shares to be redeemed. Each such notice shall state:
(a) the date of such proposed redemption; (b) the number of Depositary Shares to
be redeemed; (c) the redemption price (which shall include full cumulative
dividends thereon to the redemption date); (d) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (e) that dividends in respect of the Stock underlying the
Depositary Shares to be redeemed will cease to accumulate at the close of
business on such redemption date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Depositary to
be equitable. From and after the date set for redemption, all dividends in
respect of the Depositary Shares so called for redemption shall cease to accrue,
such Depositary Shares shall no longer be deemed outstanding and all rights of
the holders of Receipts representing such Depositary Shares (except the right to
receive the redemption price) shall cease and terminate. From and after the
redemption date, upon surrender in accordance with the redemption notice of the
Receipts representing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at the redemption price per share equal to one-
fifth (1/5) of the redemption price per share paid in respect of the shares of
Stock plus any money or other property relating thereto.
4. Transfer, Split-ups, Combinations, Surrender of Receipts. This Receipt
is transferable on the books of the Depositary upon surrender of this Receipt to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer, and upon such transfer, the Depositary shall execute a
new Receipt to or upon the order of the person entitled thereto, as provided in
the Deposit Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt, representing the same aggregate
number of Depositary Shares as the Receipt or Receipts surrendered. Any holder
of this Receipt may surrender this Receipt at the Depositary's Office or at such
other offices that the Depositary may designate to withdraw shares of Stock and
all money and other property, if any, underlying the Depositary Shares
represented by this Receipt. As a condition precedent to any transfer or
surrender for exchange of this Receipt, the Depositary, any of the Depositary's
Agents or the Company may require payment of certain charges or expenses or the
production of evidence satisfactory to it as to the identity and genuineness of
any signature and may also require compliance with such regulations, if any, as
the Depositary or the Company may establish consistent with the provisions of
the Deposit Agreement.
5. Suspension of Delivery, Transfer, etc. The transfer or surrender of
this Receipt may be suspended during any period when the register of
stockholders of the Company is closed or if any such action is deemed necessary
or advisable by the Depositary, any agent of the Depositary, or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of the
Deposit Agreement.
6. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to this Receipt, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder hereof. Transfer of this
Receipt may be refused until such payment is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of the Stock
or other property relating to this Receipt and not theretofore sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied to any
payment of such tax or charge, the holder of this Receipt remaining liable for
any deficiency.
7. Warranty by Company. The Company has warranted that the Stock when
issued, will be validly issued, fully paid and nonassessable.
8. Amendment. The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable, provided, however, that no such amendment which shall materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of at least a majority of
the Depositary Shares then outstanding. A holder of a Receipt at the time any
such amendment so becomes effective shall be deemed, by continuing to hold such
receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby.
A-2
<PAGE>
9. Charges of Depositary. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements, and all charges of the Depositary in connection with
the initial deposit of the Stock and the initial issuance of the Depositary
Shares and redemption of the Stock at the option of the Company. All other
transfer and other taxes and other governmental charges shall be at the expense
of holders of Depositary Shares. All other charges and expenses of the
Depositary and any agent of the Depositary will be paid upon consultation and
agreement between the Depositary and the Company.
10. Title to Receipts. This Receipt (and the Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a properly executed instrument
of transfer, is transferable by delivery with the same effect as in the case of
a negotiable instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distributions of dividends or other distributions or to any notice
provided for in the Deposit Agreement, and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the Receipt holders as nearly as practicable in proportion to the number of
Depositary Shares held by them; provided, however, that the amount distributed
will be reduced by any amounts required to be withheld by the Company or the
Depositary on account of taxes. Other distributions received on the Stock may be
distributed to holders of Receipts as provided in the Deposit Agreement.
12. Fixing of Record Date. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered, with
respect to Stock, or whenever the Depositary shall receive notice of any meeting
at which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice, the Depositary shall in each instance fix a record date
(which shall be the record date fixed by the Company with respect to the Stock),
for the determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting.
13. Voting Rights. Upon receipt of notice of any meeting at which holders
of Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Receipts a notice which shall contain
(a) such information as is contained in such notice of meeting and (b) a
statement informing holders of Receipts that they may instruct the Depositary as
to the exercise of the voting rights pertaining to the amount of Stock relating
to their respective Depositary Shares and a brief statement as to the manner in
which such instructions may be given. Upon the written request of a holder of a
Receipt on such record date, the Depositary shall endeavor, insofar as
practicable, to vote or cause to be voted the amount of Stock relating to such
Receipt in accordance with the instructions set forth in such request. In the
absence of specific instructions from the holder of a Receipt, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of Receipts) to the extent of the Stock underlying the Depositary Shares
evidenced by such Receipt.
14. Changes Affecting Deposited Securities. Upon any change in par or
stated value, split-up, combination or any other reclassification of the Stock
or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, or upon the sale
of all or substantially all the Company's assets, the Depositary may in its
discretion with the approval of the Company, and in such manner as the
Depositary may deem equitable, (a) make such adjustments in (i) the fraction of
an interest in one share of Stock underlying one Depositary Share and (ii) the
ratio of the redemption price of a share of Stock, in each case as may be
necessary fully to reflect the effect of such change and (b) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion or in respect of the Stock as new deposited securities so received in
exchange for or upon conversion or in respect of such Stock. In any such case
the Depositary may in its discretion, with the approval of the Company, execute
and deliver additional Receipts, or may call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities.
15. Liability and Obligations of the Depositary, the Depositary's Agent or
the Company. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company assumes any obligation or shall be subject to
A-3
<PAGE>
any liability under the Deposit Agreement to any holder of any Receipt, other
than for its gross negligence or willful misconduct. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Articles of Incorporation, as amended
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond their control, the Depositary, the Depositary's Agent,
the Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Receipt by
reasons of nonperformance or delay, caused as aforesaid, in performance of any
act or thing which by the terms of the Deposit Agreement it is provided shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement, other than
for its gross negligence or willful misconduct. Neither the Depositary nor any
Depositary's Agent nor the Company assumes any obligation or shall be subject
to any liability under the Deposit Agreement to holders of Receipts other than
to use its best judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Stock, the Depositary Shares or the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished.
The Deposit Agreement contains various other exculpatory, indemnification and
related provisions, to which reference is hereby made.
16. Resignation and Removal of Depositary. The Depositary may at any time
(a) resign by written notice of its election to do so delivered to the Company,
such resignation to take effect upon the appointment of a successor Depositary
and its acceptance of such appointment, or (b) be removed by the Company
effective upon the appointment of a successor Depositary and its acceptance of
such appointment.
17. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary only upon or after the occurrence of
any of the following events: (a) all outstanding Depositary Shares shall have
been redeemed or (b) there shall have been made a final distribution in respect
of the Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution shall have been distributed to the holders of
Receipts. Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations thereunder except for its obligations to the
Depositary with respect to indemnification, charges and expenses.
18. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL RIGHTS
HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF RHODE ISLAND.
This receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been authenticated manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and, if authenticated by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING CERTAIN
PROVISIONS OF THE DEPOSIT AGREEMENT WHICH APPEARS IN THE DEPOSITARY RECEIPTS.
THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY,
GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES
OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORDHOLDERS OF THE DEPOSITARY
RECEIPTS TO THE DEPOSITARY SHARES.
A-4
<PAGE>
A COPY OF THE DEPOSIT AGREEMENT AND A FULL STATEMENT OF THE DESIGNATION,
RELATIVE RIGHTS, INTERESTS, PREFERENCES AND RESTRICTIONS OF THE STOCK UNDERLYING
THE DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT AND OF EACH CLASS OR SERIES OF
STOCK THAT THE COMPANY IS AUTHORIZED TO ISSUE WILL BE FURNISHED BY THE COMPANY,
WITHOUT CHARGE, TO EACH HOLDER OF A RECEIPT UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY, ONE FEDERAL STREET, BOSTON, MA 02211.
Dated:
FLEET NATIONAL BANK
Depositary
By
-------------------------
Authorized Signature
A-5
<PAGE>
____________________
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - __________Custodian__________
(Cust) (Minor)
under Uniform Gift to Minors
Act______________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ______________________________________hereby sell,
assign and transfer unto
________________________________________________________________________________
Please Print or Type Name and Address Including Zip Code of Assignee
________________________________________________________________________________
Insert Social Security or Other
Identifying Number of Assignee
_______________________________________
| |
|______________________________________|
______________________________________________________________________Depositary
Shares represented by the written Receipt, and do hereby irrevocably constitute
and appoint
________________________________________________________________________Attorney
to transfer the said Receipts on the books of the within-named Dispositary with
full power of substitution in the premises.
Dated:______________________________ Signature_____________________________
NOTE: The signature of this
assignment must correspond
with the name(s) as written
upon the face of the Receipt
in every particular, without
alteration or enlargement, or
any change whatsoever.
A-6
Exhibit 4(e)
FLEET FINANCIAL GROUP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF RHODE ISLAND
THIS CERTIFICATE IS TRANSFERABLE IN PROVIDENCE AND NEW YORK CITY
SERIES V 7.25% PERPETUAL PREFERRED STOCK, PAR VALUE $1
($250 LIQUIDATION PREFERENCE)
CUSIP 338915 82 0
SEE REVERSE FOR CERTAIN DEFINITIONS
This is to certify that [ ] is the owner of [ ] FULLY PAID AND
NON-ASSESSABLE SHARES OF THE SERIES V 7.25% PERPETUAL PREFERRED STOCK OF Fleet
Financial Group, Inc., transferable on the books of the Corporation by the
holder hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate and the shares represented are
issued and held subject to the laws of the State of Rhode Island and to the
Restated Articles of Incorporation and By-Laws of the Corporation, and
amendments thereto, copies of which are on file with the Transfer Agent. This
certificate is not valid unless countersigned and registered by the Transfer
Agent and Registrar.
In Witness Whereof, the said Corporation has caused this certificate to be
signed by its duly authorized officers and its corporate seal to be hereunto
affixed.
Dated:
/s/ William C. Mutterperl
---------------------------------------
William C. Mutterperl
Secretary
Corporate Seal
/s/ Terrence Murray
---------------------------------------
Terrence Murray
Chief Executive Officer and President
Countersigned and Registered:
FLEET NATIONAL BANK
(Providence, R.I.)
By Transfer Agent and Register
-------------------------------------
<PAGE>
FLEET FINANCIAL GROUP, INC.
FLEET FINANCIAL GROUP, INC. WILL FURNISH WITHOUT CHARGE TO EACH
STOCKHOLDER WHO SO REQUESTS THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES
THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT Custodian
TEN ENT - as tenants by the -------- --------
entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gift to Minors
of survivorship and not as Act
tenants in common ---------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer shares
--------- ---------
(I or We) (Amount)
of capital stock represented by this certificate to
----------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-------------------------
/ /
/ /
- -------------------------------------------------------------------------------
(PRINT FULL NAME AND ADDRESS OF ASSIGNEE)
- --------------------------------------------------------------------------------
- ---------------------------------------------------------------------, Assignee,
and do hereby irrevocably constitute and appoint
--------------------------------
(Leave blank or fill in as
explained in Notice below)
as Attorney to transfer the said Stock on the books of the Corporation with full
power of substitution in the premises.
Dated:
--------------------------------- -----------------------------------
Sign here exactly as name(s) is
shown on the face of this
Certificate without any change or
alteration whatsoever.
Important Notice: When you sign your name to this Assignment Form without
the name of your "Assignee" or "Attorney", this stock certificate becomes fully
negotiable, similar to a check signed in blank. Therefore to safeguard a signed
certificate, it is recommended that you either (i) fill in the name of the new
owner in the "Assignee" blank, or (ii) if you are sending the signed certificate
to your bank or broker, fill in the name of the bank or broker in the "Attorney"
blank. Alternatively, instead of using this Assignment Form you may sign a
separate "stock power" form and then mail the unsigned stock certificate and the
signed "stock power" in separate envelopes. For added protection, use certified
or registered mail for a stock certificate.
Exhibit 4(f)
FLEET FINANCIAL GROUP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF RHODE ISLAND
THIS CERTIFICATE IS TRANSFERABLE IN PROVIDENCE AND NEW YORK CITY
SERIES VI 6.75% PERPETUAL PREFERRED STOCK, PAR VALUE $1
($250 LIQUIDATION PREFERENCE)
CUSIP 338915 81 2
SEE REVERSE FOR CERTAIN DEFINITIONS
This is to certify that [ ] is the owner of [ ] FULLY PAID AND
NON-ASSESSABLE SHARES OF THE SERIES VI 6.75% PERPETUAL PREFERRED STOCK OF Fleet
Financial Group, Inc., transferable on the books of the Corporation by the
holder hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate and the shares represented are
issued and held subject to the laws of the State of Rhode Island and to the
Restated Articles of Incorporation and By-Laws of the Corporation, and
amendments thereto, copies of which are on file with the Transfer Agent. This
certificate is not valid unless countersigned and registered by the Transfer
Agent and Registrar.
In Witness Whereof, the said Corporation has caused this certificate to be
signed by its duly authorized officers and its corporate seal to be hereunto
affixed.
Dated:
/s/ William C. Mutterperl
--------------------------------------
William C. Mutterperl
Secretary
Corporate Seal
/s/ Terrence Murray
--------------------------------------
Terrence Murray
Chief Executive Officer and President
Countersigned and Registered:
FLEET NATIONAL BANK
(Providence, R.I.)
By Transfer Agent and Register
-------------------------------------
<PAGE>
FLEET FINANCIAL GROUP, INC.
FLEET FINANCIAL GROUP, INC. WILL FURNISH WITHOUT CHARGE TO EACH
STOCKHOLDER WHO SO REQUESTS THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES
THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT Custodian
TEN ENT - as tenants by the -------- --------
entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gift to Minors
of survivorship and not as Act
tenants in common ---------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer shares
--------- ---------
(I or We) (Amount)
of capital stock represented by this certificate to
----------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-------------------------
/ /
/ /
- -------------------------------------------------------------------------------
(PRINT FULL NAME AND ADDRESS OF ASSIGNEE)
- --------------------------------------------------------------------------------
- ---------------------------------------------------------------------, Assignee,
and do hereby irrevocably constitute and appoint
--------------------------------
(Leave blank or fill in as
explained in Notice below)
as Attorney to transfer the said Stock on the books of the Corporation with full
power of substitution in the premises.
Dated:
--------------------------------- -----------------------------------
Sign here exactly as name(s) is
shown on the face of this
Certificate without any change or
alteration whatsoever.
Important Notice: When you sign your name to this Assignment Form without
the name of your "Assignee" or "Attorney", this stock certificate becomes fully
negotiable, similar to a check signed in blank. Therefore to safeguard a signed
certificate, it is recommended that you either (i) fill in the name of the new
owner in the "Assignee" blank, or (ii) if you are sending the signed certificate
to your bank or broker, fill in the name of the bank or broker in the "Attorney"
blank. Alternatively, instead of using this Assignment Form you may sign a
separate "stock power" form and then mail the unsigned stock certificate and the
signed "stock power" in separate envelopes. For added protection, use certified
or registered mail for a stock certificate.
Exhibit 5
February 21, 1996
Fleet Financial Group, Inc.
50 Kennedy Plaza
Providence, Rhode Island 02903
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (the "Registration
Statement") filed by Fleet Financial Group, Inc. (the "Company") with the
Securities and Exchange Commission on October 24, 1995, as amended by Amendment
No. 1 Filed on November 21, 1995 and Amendment No. 2 filed on November 29, 1995
in connection with the registration under the Securities Act of 1933, as
amended, of Securities having a public offering price of up to an
aggregate of $1,358,400,000 (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")) pursuant to an offering to be made on a
continuous or delayed basis pursuant to the provisions of Rule 415.
We are rendering this opinion in connection with the sale by the Company
of up to 12,650,000 Depositary Shares (the "Series V Depositary Shares"), each
representing a one-tenth interest in a share of Series V 7.25% Perpetual
Preferred Stock (the "Series V Preferred Stock") and up to 3,450,000 Depositary
Shares (the "Series VI Depositary Shares", and together with the Series V
Depositary Shares, collectively, the "Depositary Shares"), each representing
a one-fifth interest in a share of Series VI 6.75% Perpetual Preferred Stock
(the "Series VI Preferred Stock", and together with the Series V Preferred
Stock, collectively, the "Preferred Stock"). The Depositary Shares and the
Preferred Stock is hereinafter referred to as the "Securities".
We have served as counsel for the Company and, as such, assisted in the
organization thereof under the laws of the State of Rhode Island and are
familiar with all corporate proceedings since its organization. We have examined
the following documents and records:
(1) The Restated Articles of Incorporation of the Company;
(2) The By-Laws of the Company;
(3) Specimen certificates of the Preferred Stock and Depositary
Receipts representing the Depositary Shares;
<PAGE>
(4) The Deposit Agreements between the Company and Fleet National Bank,
pursuant to which the Depositary Shares will be issued; and
(5) All corporate minutes and proceedings of the Company relating to the
issuance of the Preferred Stock and Depositary Shares.
We have also examined such further documents, records and proceedings as we
have deemed pertinent in connection with the issuance of said Securities. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the completeness and authenticity of all documents
submitted to us as originals, and the conformity to the originals of all
documents submitted to us as certified, photostatic or conformed copies, and the
validity of all laws and regulations. We have assumed that the Certificates and
the Depositary Receipts are duly executed and delivered in substantially the
forms reviewed by us.
We are qualified to practice law in the State of Rhode Island and we do not
purport to express any opinion herein concerning any law other than the laws of
the State of Rhode Island and the federal law of the United States.
Based upon such examination, it is our opinion that the Preferred Stock and
Depositary Shares when issued and paid for, will be legally issued, fully
paid and non-assessable.
V. Duncan Johnson, a partner of Edwards & Angell, is a director of Fleet
National Bank, Fleet Bank of Massachusetts, National Association, Fleet Bank,
National Association, Fleet National Bank of Massachusetts and Fleet
National Bank of Connecticut, subsidiaries of the Company, and beneficially
owns 4,052 shares of Common Stock of the Company.
We consent to the use of this opinion as an exhibit to the Form 8-K filed to
report the issuance of the Securities.
Very truly yours,
/s/ EDWARDS & ANGELL
--------------------------------------
Edwards & Angell
2
