UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
Fleet Financial Group, Inc.
------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, Par Value $1.00 Per Share
------------------------------------------------------------------------------
(Title of Class of Securities)
338915101
-------------------------------------------------------------
(CUSIP Number)
Michael T. Tokarz With a copy to:
KKR Associates, Whitehall
Associates, LP. Lee Meyerson, Esq.
and KKR Partners II, LP. Simpson Thacher & Bartlett
c/o Kohlberg Kravis Roberts & Co. 425 Lexington Avenue
9 West 57th Street New York, New York 10017-3909
New York, New York 10019 (212) 455-2000
(212) 750-8300
------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
December 31, 1995
-------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box /__/.
Check the following box if a fee is being paid with the statement /__/.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
<PAGE>
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 338915101
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR Associates
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /__/
(b) /__/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /__/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
SHARES 26,385,890
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON
WITH 9 SOLE DISPOSITIVE
POWER
26,385,890
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
26,385,890
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/__/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.8%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 338915101
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Whitehall Associates, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /__/
(b) /__/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /__/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 26,156,062
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 0
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
26,156,062
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
26,156,062
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/__/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.7%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 338915101
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR Partners II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /__/
(b) /__/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /__/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
SHARES 229,828
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON
WITH 9 SOLE DISPOSITIVE POWER
229,828
10 SHARED DISPOSITIVE
POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
229,828
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* /__/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
AMENDMENT NO. 2 TO SCHEDULE 13D
The Statement on Schedule 13D (as previously amended, the "Schedule 13D")
relating to the shares of common stock, $1.00 par value ("Common Stock"), of
Fleet Financial Group, Inc., a Rhode Island corporation (the "Issuer"), as
previously filed on July 22, 1991 and amended on May 19, 1992, by KKR
Associates, Whitehall Associates, L.P. and KKR Partners II, L.P. (the
"Reporting Persons") is hereby amended and restated in its entirety as required
by the provisions of Regulation S-T. The purpose of this amendment is to
reflect the acquisition of Common Stock by the Reporting Persons pursuant to
the Exchange Agreement and the transactions related thereto, all as further
described below.
Item 1. Security and the Issuer.
This amendment relates to the shares of Common Stock of the Issuer. The
principal executive offices of the Issuer are located at 50 Kennedy Plaza,
Providence, Rhode Island 02903.
Item 2. Identity and Background.
This Statement is being filed jointly by Whitehall Associates, L.P., a
Delaware limited partnership ("Whitehall Associates"), KKR Partners II, L.P., a
Delaware limited partnership ("KKR Partners II," together with Whitehall
Associates, the "Partnerships") and KKR Associates, a New York limited
partnership ("KKR Associates").
Whitehall Associates and KKR Partners II are principally engaged in the
business of investing in securities. The address of their principal businesses
and offices is 9 West 57th Street, New York, New York 10019.
The sole general partner of each of Whitehall Associates and KKR Partners
II is KKR Associates. KKR Associates is principally engaged in the business of
<PAGE>
investing through partnerships in industrial and other companies. The address
of its principal business and office is 9 West 57th Street, New York, New York
10019.
Messrs. Henry R. Kravis, George R. Roberts, Robert I. MacDonnell, Paul E.
Raether, Michael W. Michelson, Saul A. Fox, James H. Greene, Jr., Michael T.
Tokarz, Perry Golkin, Clifton S. Robbins, Scott M. Stuart and Edward A. Gilhuly
are the general partners of KKR Associates. Messrs. Kravis, Roberts,
MacDonnell, Raether, Michelson, Fox, Greene, Tokarz, Golkin, Robbins, Stuart
and Gilhuly are each United States citizens, and the present principal
occupation or employment of each is as a general partner of Kohlberg Kravis
Roberts & Co. ("KKR"), a private investment firm, the addresses of which are 9
West 57th Street, New York, New York 10019, and 2800 Sand Hill Road, Suite 200,
Menlo Park, California 94025. The business address of Messrs. Kravis, Raether,
Tokarz, Golkin, Robbins and Stuart is 9 West 57th Street, New York, New York
10019; the business address of Messrs. Roberts, MacDonnell, Michelson, Fox,
Greene and Gilhuly is 2800 Sand Hill Road, Suite 200, Menlo Park, California
94025.
During the last five years, neither the Reporting Persons nor, to the best
knowledge of the Reporting Persons, any of the other persons named in this Item
2: (i) has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); or (ii) was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration.
On December 31, 1995, the Partnerships entered into an Exchange Agreement
(the "Exchange Agreement") with the Issuer and Fleet Banking Group, Inc.
("FBG"), a wholly-owned subsidiary of the Issuer, to exchange the 1,415,000
shares of Dual Convertible Preferred Stock ("DCP Shares") owned by the
Partnerships for 19,885,890 shares of Common Stock (the "Exchanged Common
Stock"). The Partnerships continue to hold Common Stock Purchase Rights
exercisable for 6,500,000 shares of Common Stock, as described below.
The Exchanged Common Stock was acquired in exchange for the DCP Shares
pursuant to the Exchange Agreement. No cash consideration was paid for the
Exchanged Common Stock.
The Partnerships originally acquired the DCP Shares from the Issuer on
July 12, 1991 (the "Original Issue Date") in a private transaction for an
aggregate cash purchase price of $283,000,000. These shares were purchased in
connection with the acquisition and recapitalization by the Issuer of the New
Bank of New England, N.A., New Connecticut Bank & Trust Company, N.A. and New
Maine National Bank (the "Bridge Banks") with the assistance of the Federal
Deposit Insurance Corporation (the "FDIC"). At the time the Exchange Agreement
was executed, the DCP Shares were convertible into an aggregate of 16,033,994
shares of Common Stock (equivalent to a conversion price of $17.65 per share,
subject to customary anti-dilution adjustments).
In addition, on the Original Issue Date, the Partnerships also received
from the Issuer, for no additional consideration, Common Stock Purchase Rights,
which are exercisable at any time, to purchase 6,500,000 shares of Common Stock
(the "Rights") at a price of $17.65 per share (subject to customary anti-
dilution adjustments). The Rights provide that upon the exercise thereof the
Issuer will have the option to pay the holder cash, in lieu of issuing any
shares of Common Stock, in an amount equal to the "spread" between the exercise
price and the then-market value of the Common Stock. The aggregate exercise
price of the Rights would be $114,725,000 if all the Rights are exercised and
<PAGE>
the Issuer does not elect to pay the "spread" in cash in lieu of issuing shares
of its Common Stock.
The source of funds for the original purchase by the Partnerships of the
DCP Shares was capital contributions by the general and limited partners of the
Partnerships. It is expected that the source of funds for any exercise of the
Rights by the Partnerships in the future would be capital contributions at the
time of such exercise by the general and limited partners of the Partnerships.
Item 4. Purpose of Transaction.
The acquisition of the DCP Shares and the Rights by the Partnerships was
made solely for investment purposes to provide a portion of the capital
necessary for the Issuer to acquire the Bridge Banks from the FDIC. The
acquisition of the Exchanged Common Stock by the Partnerships was made solely
for investment purposes.
Subject to certain restrictions set forth in the Stock Purchase Agreement,
dated as of July 12, 1991, among the Issuer, FBG and the Partnerships (the
"Stock Purchase Agreement"), as amended by the Exchange Agreement (the "Amended
Stock Purchase Agreement"), and applicable banking laws and regulations, the
Reporting Persons may (but have no present plan or proposal to) make additional
purchases of Common Stock or other securities of the Issuer either in the open
market or in private transactions, depending on the Reporting Persons'
evaluation of the Issuer's business, prospects and financial condition, the
market for the Common Stock and other securities of the Issuer, other
opportunities available to the Reporting Persons, general economic conditions,
monetary and stock market conditions, other regulatory approvals and other
future developments. Depending upon, among other things, the factors set forth
above and subject to certain restrictions set forth in the Amended Stock
Purchase Agreement, the Reporting Persons may (but have no present plan or
proposal to) dispose of all or a part of their investment in securities of the
<PAGE>
Issuer at any time. For further information concerning the restrictions
contained in the Amended Stock Purchase Agreement on the acquisition and
disposition by the Partnerships of certain securities of the Issuer, see Item 6
below.
The Reporting Persons have no plans or proposals which relate to or would
result in:
(1) any extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its
subsidiaries;
(2) any sale or transfer of a material amount of assets of the
Issuer or any of its subsidiaries;
(3) any change in the present board of directors or management
of the Issuer, including any plans or proposals to change the number
or term of directors or to fill any existing vacancies on the board;
(4) any material change in the present capitalization or
dividend policy of the Issuer;
(5) any other material change in the Issuer's business or
corporate structure;
(6) any change in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the Issuer by any person;
(7) causing the Common Stock of the Issuer to be delisted from
a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(8) causing a class of equity securities of the Issuer to become
eligible for termination of Registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934; or
(9) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
As a result of the consummation of the transactions contemplated by the
Exchange Agreement, Whitehall Associates and KKR Partners II may be deemed to
beneficially own 26,156,062 and 229,828 shares of Common Stock, respectively,
by virtue of their ownership of the shares of Exchanged Common Stock and the
Rights. Such shares would constitute approximately 9.8% of the total number of
<PAGE>
shares of the Common Stock outstanding as of December 31, 1995 (based on
information provided by the Issuer to the Partnerships), after giving effect to
the issuance of an additional 6,500,000 shares of Common Stock upon the
exercise of the Rights. At the time the Exchange Agreement was executed, none
of the DCP Shares had been converted into Common Stock. As of the date hereof,
none of the Rights have been exercised.
Whitehall Associates and KKR Partners II, acting through their sole
general partner, KKR Associates, have the sole power to vote or to direct the
vote, and to dispose or to direct the disposition of, the Exchanged Common
Stock and any shares of Common Stock received upon exercise of the Rights. As
a result, KKR Associates may be deemed to beneficially own any shares of Common
Stock deemed to be beneficially owned by Whitehall Associates and KKR Partners
II. Each of Messrs. Kravis, Roberts, MacDonnell, Raether, Michelson, Fox,
Greene, Tokarz, Golkin, Robbins, Stuart and Gilhuly, the general partners of
KKR Associates, has shared power to vote or to direct the vote, and to dispose
or to direct the disposition of, any shares of Common Stock that may be deemed
to be beneficially owned by KKR Associates. As a result, each of the general
partners of KKR Associates may be deemed to beneficially own the shares of
Common Stock that KKR Associates may be deemed to beneficially own.
To the best knowledge of each of the Reporting Persons, none of the
Reporting Persons and no other person named in Item 2 has beneficial ownership
of, or has engaged in any transaction during the past 60 days in, any shares of
the Common Stock, except as disclosed herein.
Whitehall Associates and KKR Partners II have the right to receive and the
power to direct the receipt of dividends from, or the proceeds from the sale
of, the shares of Exchanged Common Stock and shares of Common Stock which
Whitehall Associates and KKR Partners II are entitled to purchase pursuant to
the Rights. To the best knowledge of the Reporting Persons, no person, other
than Whitehall Associates and KKR Partners II and the respective partners of
<PAGE>
Whitehall Associates and KKR Partners II, has the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Exchanged Common Stock or shares of Common Stock which Whitehall
Associates and KKR Partners II are entitled to purchase pursuant to the Rights.
Item 6. Contracts, Arrangements or Understandings with Respect to Securities
of the Issuer.
The Stock Purchase Agreement and the agreements and instruments attached
as exhibits thereto set forth the original agreement of the Partnerships to
acquire the DCP Shares and the Rights and related matters, including certain
agreements with respect to the voting or disposition of the DCP Shares and the
Rights and the securities issuable upon the conversion or exercise thereof.
The Exchange Agreement sets forth the agreement of the Partnerships to exchange
the DCP Shares for the Exchanged Common Stock and certain agreements related
thereto, including agreements with respect to the transfer or disposition of
the Exchanged Common Stock and shares of Common Stock issuable upon exercise of
the Rights. Except as amended by the Exchange Agreement, the Stock Purchase
Agreement remains in full force and effect.
The Amended Stock Purchase Agreement provides that the Partnerships may
not transfer or otherwise dispose of any Rights except to a "Permitted
Transferee" (defined to include the limited and general partners in the
Partnerships and their affiliates and successors). The holders of the Rights
have no voting rights.
Pursuant to the Amended Stock Purchase Agreement, the Partnerships agreed
that prior to January 22, 1996, they would not transfer or otherwise dispose of
beneficial or economic ownership of the Exchanged Common Stock or any shares of
Common Stock received upon exercise of the Rights. From and after January 22,
1996, the Exchanged Common Stock and any shares of Common Stock acquired by the
Partnerships upon exercise of the Rights may be transferred or disposed of by
the Partnerships to a Permitted Transferee or to persons who would not, as a
<PAGE>
result, beneficially own 5% or more of the Common Stock, except that the
Partnerships (i) may tender the Exchanged Common Stock and any shares of Common
Stock received upon exercise of the Rights in certain tender or exchange offers
(subject to a right of first refusal by the Issuer in the case of certain
tender or exchange offers which the Board of Directors of the Issuer has
advised shareholders of the Issuer to reject), and (ii) may sell the Exchanged
Common Stock and shares of Common Stock received upon exercise of the Rights in
a widely distributed underwritten public offering.
Pursuant to the Amended Stock Purchase Agreement, the Partnerships have
also agreed that until the later of July 15, 1997 or the date on which the
Partnerships beneficially own less than 3% of the outstanding Common Stock (the
"Standstill Period"), the Partnerships and their affiliates will not, subject
to certain exceptions specified in the Amended Stock Purchase Agreement (i)
acquire beneficial ownership of any additional Voting Securities (as defined in
the Amended Stock Purchase Agreement), except in certain limited circumstances
involving the issuance by the Issuer of shares of Common Stock, or securities
convertible into or exercisable for Common Stock, at a price below the exercise
price for the Rights, (ii) make any public announcement with respect to, or
submit to the Issuer any proposal for, the acquisition of any Voting Securities
or a merger, consolidation or other business combination involving the Issuer,
whether or not the Partnerships or their affiliates are involved, unless the
Issuer has made a written request to the Partnerships to submit such proposal,
(iii) participate in the solicitation of proxies to vote any Voting Securities,
or become a participant in any election contest, as such terms are defined in
Regulation 14A under the Act, (iv) deposit any Voting Securities in a voting
trust or subject them to an arrangement with similar effect (other than the
granting of revocable proxies), or (v) form or join a partnership, syndicate or
other group (as defined in Section 13(d) of the Exchange Act) with respect to
<PAGE>
any Voting Securities, other than a group of which only the Partnerships or
their affiliates are members.
In addition, the Partnerships agreed that (i) during the Standstill Period
they would comply with the provisions of certain commitments made by the
Partnerships to the Federal Reserve Board in 1991 in connection with the
Partnerships' original acquisition of the DCP Shares and the Rights, regardless
of whether such commitments are terminated by the Federal Reserve Board, and
(ii) if during the Standstill Period their beneficial ownership of Common Stock
causes them to be an "affiliate" of the Issuer for pooling of interest
accounting purposes, and the Issuer proposes to enter into a business
combination to be accounted for as a pooling, the Partnerships would execute
and deliver an affiliate letter pursuant to which the Partnerships would agree
not to dispose of their Common Stock in any disposition which would cause the
Issuer to fail to obtain such accounting treatment.
A Registration Rights Agreement, dated as of July 12, 1991, among the
Issuer, the Partnerships and FBG (the "Registration Rights Agreement"),
provided holders of the DCP Shares and continues to provide holders of the
Rights with certain registration rights under federal and state securities laws
with respect to the securities of the Issuer. Pursuant to the Exchange
Agreement, the Registration Rights Agreement (a copy of which was previously
filed as Exhibit 2(d) to the Schedule 13D) was amended to include the Exchanged
Common Stock as registrable securities thereunder.
The above descriptions of the Stock Purchase Agreement, the Registration
Rights Agreement and the Exchange Agreement and related matters set forth in
this Item and in Items 3, 4, and 5 are summaries and are qualified in their
entirety by reference to the complete texts of such documents which are
contained in Exhibits 2(a)-(e) hereto and incorporated herein by reference.
Except as set forth in this Schedule 13D as amended and restated, to the
best knowledge of the Reporting Persons, there are no other contracts,
<PAGE>
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 and between such persons and any person with respect to
any securities of the Issuer, including but not limited to, transfer or voting
of any of the securities of the Issuer, joint ventures, loan or option
arrangements, puts or calls, guarantees or profits, division of profits or
loss, or the giving or withholding of proxies, or a pledge or contingency the
occurrence of which would give another person voting power over the securities
of the Issuer.
Item 7. Material to Be Filed as Exhibits.
*1. Joint Filing Agreement, dated July 22, 1991, among Whitehall Associates,
KKR Partners II and KKR Associates relating to the filing of a joint
statement on Schedule 13D.
*2(a) Stock Purchase Agreement, dated as of July 12, 1991, among the Issuer,
FBG and the Partnerships.
*2(b) Certificate of Designations for the DCP Shares, as filed with the
Secretary of State of Rhode Island.
*2(c) Form of Rights Certificate for the Stock Purchase Rights.
*2(d) Registration Rights Agreement, dated as of July 12, 1991 among the
Issuer, FBG and the Partnerships.
2(e) Exchange Agreement dated as of December 31, 1995 among the Issuer, FBG,
and the Partnerships.
* Previously filed in paper format.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Statement is true, complete
and correct.
WHITEHALL ASSOCIATES, L.P.
By: KKR Associates
General Partner
By:/s/ Michael T. Tokarz
--------------------------
Name: Michael T. Tokarz
Title: General Partner
KKR PARTNERS II, L.P.
By:/s/ Michael T. Tokarz
--------------------------
Name: Michael T. Tokarz
Title: General Partner
KKR ASSOCIATES
By:/s/ Michael T. Tokarz
--------------------------
Name: Michael T. Tokarz
Title: General Partner
DATED: January 2, 1996
<PAGE>
EXHIBIT LIST
EXHIBIT NO. TITLE
*1. Joint Filing Agreement, dated July 22, 1991,
among Whitehall Associates, KKR Partners II
and KKR Associates relating to the filing of
a joint statement on Schedule 13D.
*2(a) Stock Purchase Agreement, dated as of July 12,
1991, among the Issuer, FBG and the Partnerships.
*2(b) Certificate of Designations for the DCP Shares, as
filed with the Secretary of State of Rhode Island.
*2(c) Form of Rights Certificate for the Stock Purchase
Rights.
*2(d) Registration Rights Agreement, dated as of July 12,
1991 among the Issuer, FBG and the Partnerships.
2(e) Exchange Agreement dated as of December 31, 1995
among the Issuer, FBG, and the Partnerships.
* Previously filed in paper format.
Exhibit 2(e)
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT is entered into as of the 31st
day of December, 1995 by and among FLEET FINANCIAL GROUP, INC., a Rhode Island
corporation ("Fleet"), FLEET BANKING GROUP, INC., a Rhode Island corporation
("FBG"), WHITEHALL ASSOCIATES, L.P., a Delaware limited partnership and KKR
PARTNERS II, L.P., a Delaware limited partnership (collectively, the
"Partnerships").
WITNESSETH THAT:
WHEREAS, the Partnerships collectively own 1,415,000
shares of Fleet's Dual Convertible Preferred Stock (the "DCP Shares") and
rights to purchase (the "Rights") 6,500,000 shares of Fleet's common stock,
$.01 par value (the "Common Stock"); and
WHEREAS, pursuant to the terms of the Stock Purchase
Agreement dated as of July 12, 1991 among Fleet, FBG and the Partnerships (the
"Stock Purchase Agreement"), the Certificate of Designations establishing the
DCP Shares (the "Certificate of Designations") and this Agreement, Fleet and
the Partnerships desire to issue 19,885,890 shares of Common Stock (the
"Exchanged Common Stock") in exchange for the DCP Shares, in accordance with
the terms set forth herein and therein; and
WHEREAS, the parties hereto intend that the
transaction contemplated by this Agreement be treated as a reorganization
within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of
1986, as amended; and
WHEREAS, Fleet, FBG and the Partnerships are entering
into this Agreement to set forth their agreement as to certain matters relating
to the Rights and the Exchanged Common Stock.
NOW, THEREFORE, in consideration of the premises and
the agreements herein contained and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Exchange. The Partnerships hereby exchange the DCP
Shares for the Exchanged Common Stock, and hereby deliver the certificates
representing the DCP Shares to Fleet for cancellation. Fleet hereby agrees to
issue certificates evidencing such Exchanged Common Stock in the names of the
Partnerships in the same proportion as the DCP Shares are currently held by the
Partnerships. The certificates evidencing the Exchanged Common Stock will be
issued the date of this Agreement.
2. Amendment of Stock Purchase Agreement. The Stock
Purchase Agreement is hereby amended as follows:
(a) Section 1.01 of the Stock Purchase Agreement is
hereby amended to add a new definition as follows:
"Exchange Agreement" shall mean the Exchange Agreement dated
December 31, 1995 among the Company, Holding and the Purchasers.
<PAGE>
(b) All references in the Stock Purchase Agreement to
"Common Stock received by Purchasers upon conversion of the DCP Shares", or
similar wording, shall be deemed amended to include the Exchanged Common Stock.
(c) Section 4.04(a) of the Stock Purchase Agreement is
hereby amended to read in its entirety as follows:
"Section 4.04. Transfer Restrictions. (a) (i)
Purchasers, and any Permitted Transferees, shall not sell, transfer, or
otherwise dispose of beneficial ownership of the Rights to any Person other
than a Permitted Transferee. Purchasers agree that they shall not directly or
indirectly sell, pledge, transfer, or otherwise dispose of or agree to sell,
pledge, transfer or dispose of, all or any portion of the beneficial or
economic ownership of the Exchanged Common Stock or the Common Stock to be
issued upon exercise of the Rights, including in a Distribution (as such term
was defined in the Certificate of Designations), at any time prior to January
22, 1996 (whether directly or indirectly through a put, call, option, short
sale, warrant, convertible security, stock appreciation right, derivative
security or by means of any other agreement, commitment or instrument having
the effect of disposing of an interest in said securities) except to any
Affiliate of the Purchasers, provided that such Affiliate agrees in writing to
be bound by the provisions of this Agreement and the provisions of the Exchange
Agreement. From and after January 22, 1996, Purchasers shall not sell,
transfer, or otherwise dispose of beneficial ownership of the Exchanged Common
Stock or any shares of Common Stock received by Purchasers upon exercise of the
Rights to any Person other than a Permitted Transferee (each such occurrence, a
"Disposition"), in any transaction or series of transactions, if, at the time
of agreement to effect such Disposition, to such Purchaser's knowledge, such
Person and its Affiliates then beneficially own, or as a result of such
Disposition would beneficially own, as the case may be, 5% or more of the
Common Stock, unless such Purchaser shall have received the prior approval of
the Board of Directors of the Company. NOTWITHSTANDING A PURCHASER' S LACK OF
KNOWLEDGE AS TO A TRANSFEREE'S VIOLATION OF THE PERCENTAGE OWNERSHIP
LIMITATIONS OF THE PRECEDING SENTENCE, ANY PURPORTED TRANSFER IN VIOLATION OF
THESE PROVISIONS SHALL BE VOID AND OF NO FORCE OR EFFECT.
(ii) In making any such sales of Common Stock, the
Partnerships shall give prior notice to, and consult with, Fleet as to the
manner and timing of such sales so as to avoid undue disruption in the trading
market for Fleet's Common Stock.
(d) Section 4.04(d) of the Stock Purchase Agreement is
hereby amended to read in its entirety as follows:
"(d) (i) Purchasers covenant to and agree with the
Company that until the later to occur of July 15, 1997 or the date on which the
Purchasers Beneficially Own less than three percent (3%) of the outstanding
Common Stock (the "Standstill Period"), without the Company's prior written
consent, neither the Purchasers nor their respective Affiliates will, directly
or indirectly:
(A) In any way acquire, offer or propose to
acquire or agree to acquire Beneficial Ownership of any Voting
Securities or any direct or indirect rights or options to
acquire Beneficial Ownership of any Voting Securities other
than those acquired by Purchasers from the Company pursuant to
<PAGE>
the Rights or pursuant to a stock split, stock dividend or
similar corporate action initiated by the Company;
(B) Make any public announcement with respect to
(except as otherwise required by applicable law), or submit to
the Company or any of its directors, officers, representatives,
trustees, employees, attorneys, advisors, agents or Affiliates,
any proposal for, the acquisition of any Voting Securities or
with respect to any merger, consolidation, business combination
or purchase of any substantial portion of the assets of the
Company, whether or not any parties other than Purchasers and
their Affiliates are involved, and whether or not such proposal
might require the making of a public announcement by the
Company, unless (X) such proposal is directed and disclosed
only to the Board of Directors of the Company, and (Y) the
Company shall have made a prior written request to Purchasers
to submit such proposal;
(C) Make, or in any way participate in, any
"solicitation" of "proxies" (as such terms are defined or used
in Regulation 14A under the Exchange Act) to vote any Voting
Securities or become a "participant" in any "election contest"
as such terms are defined and used in Rule 14a-11 under the
Exchange Act);
(D) Deposit any Voting Securities in a voting
trust or subject any Voting Securities to any arrangement or
agreement (other than this Agreement) with respect to the
voting of such Voting Securities or other agreement having
similar effect, except that the Purchasers may grant any
revocable proxy in connection with proxy solicitations under
the Exchange Act; or
(E) Form or join a partnership, limited
partnership, syndicate or other group (as defined in Section 13
(d) (3) of the Exchange Act) with respect to any Voting
Securities (other than a group of which only the Purchasers
and Purchasers' Affiliates are members).
(ii) Purchasers further covenant to and agree with the
Company that during the Standstill Period, the Purchasers will comply with
commitments numbered 1-7 and 9 made by the Purchasers to the Board of Governors
of the Federal Reserve System (the "Federal Reserve Board") and set forth on
pages one and two of the Appendix to the letter of the Federal Reserve Board
dated July 12, 1991 addressed to Lee Meyerson of Simpson Thacher & Bartlett
(the "Passivity Commitments") as if such Passivity Commitments were set forth
in this Agreement, regardless of whether the Passivity Commitments are
terminated by the Federal Reserve Board.
(iii) Purchasers further covenant to and agree with the
Company that if, during the Standstill Period, the Purchasers' Beneficial
Ownership of the Common Stock of the Company would be such as to cause the
Purchasers to constitute an "affiliate" for pooling of interests accounting
purposes, and the Company proposes to enter into a business combination to be
accounted for by the pooling of interests accounting method, the Purchasers
will execute and deliver to the Company an affiliate letter pursuant to which
<PAGE>
the Purchasers agree not to dispose of their Common Stock in any disposition
which would cause the Company to fail to obtain such accounting treatment.
(iv) For purposes of this Section 4.01(d), a Person shall be
deemed to "Beneficially Own" any securities of which such Person or any such
Person's Affiliates is considered to be a "Beneficial Owner" under Rule 13(d)-3
of the Exchange Act as in effect on the date hereof or of which such Person or
any of such Person's Affiliates or associates, directly or indirectly, has the
right to acquire (whether such right is exercisable immediately or only after
the passage of time or upon the satisfaction of conditions) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise and "Voting Securities" shall mean at any time shares of any class of
capital stock of the Company which are then entitled to vote generally in the
election of directors."
(c) Section 4.08(b) of the Stock Purchase Agreement is
hereby amended to read in its entirety as follows:
"Section 4.08. Legends. (b) Certificates for the
Common Stock to be issued to the Purchasers shall bear legends in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
WHILE SUCH A REGISTRATION IS IN EFFECT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. THIS
CERTIFICATE IS ISSUED PURSUANT TO AND SUBJECT TO THE
RESTRICTIONS ON TRANSFER, AND OTHER PROVISIONS OF A STOCK
PURCHASE AGREEMENT DATED AS OF JULY 12, 1991 (AS AMENDED BY AN
EXCHANGE AGREEMENT DATED AS OF DECEMBER 31, 1995) AMONG THE
COMPANY, FLEET BANKING GROUP, INC. (FORMERLY FLEET/NORSTAR
HOLDING COMPANY, INC.) AND THE PURCHASERS REFERRED TO THEREIN,
A COPY OF WHICH IS ON FILE WITH THE COMPANY. EXCEPT AS
PROVIDED IN SUCH STOCK PURCHASE AGREEMENT, AS AMENDED, THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE
AND ANY PURPORTED TRANSFER IN VIOLATION OF THE PROVISIONS OF
SUCH STOCK PURCHASE AGREEMENT, AS AMENDED, SHALL BE VOID AND OF
NO FORCE AND EFFECT."
(d) Except as amended hereby, the Stock Purchase Agreement
shall remain in full force and effect. The parties hereto confirm that all
matters set forth therein which speak as of a prior date are specifically not
brought forward and revived as part of this Agreement. All references in the
Stock Purchase Agreement and the Ancillary Documents to "this Agreement" or the
"Stock Purchase Agreement" shall be deemed to be references to the Stock
Purchase Agreement, as amended hereby.
3. Amendment of Registration Rights Agreement. The
Registration Rights Agreement dated as of July 12, 1991 among Fleet, FBG and
the Partnerships (the "Registration Rights Agreement") is hereby amended to
include the Exchanged Common Stock as Registrable Securities thereunder. All
references in the Registration Rights Agreement, the Stock Purchase Agreement
and the Ancillary Documents to the "Registration Rights Agreement" shall be
<PAGE>
deemed to be references to the Registration Rights Agreement, as amended
hereby.
4. Representations and Warranties. (a) Fleet hereby
represents and warrants to the Partnerships that (i) each of Fleet and FBG has
full corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby; (ii) the execution, delivery
and performance of this Agreement by each of Fleet and FBG has been duly
authorized by all necessary corporate action; (iii) this Agreement has been
duly and validly executed and delivered by Fleet and FBG, and constitutes the
valid and binding obligation of Fleet and FBG, enforceable against them in
accordance with its terms, except as (A) the enforceability hereof may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and (B) the enforceability of
equitable remedies may be limited by equitable principles of general
applicability; (iv) the execution, delivery and performance of this Agreement,
the consummation of the transactions by Fleet and FBG contemplated hereby and
the compliance by Fleet and FBG with any of the provisions hereof will not
conflict with, violate or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both would
constitute a default) under, or result in the termination of or accelerate the
performance required by, or result in a right of termination or acceleration
under, (1) any provision of the articles of incorporation, by-laws or other
governing instrument of Fleet and FBG or (2)(x) any mortgage, note, indenture,
deed of trust, lease, loan agreement or other agreement or instrument or, (y)
any permit, concession, grant, franchise, license, judgment, order, decree,
ruling, injunction, statute, law, ordinance, rule or regulation, in the case of
(x) or (y), applicable to Fleet, FBG or their respective properties or assets,
except for such conflicts, violations, breaches, defaults, terminations and
accelerations which do not have, or could not be reasonably expected to have, a
Material Adverse Effect (as defined in the Stock Purchase Agreement); (v) no
consent, approval, order or filing with, any governmental authority is required
in connection with the execution, delivery and performance of this Agreement by
Fleet and FBG and the consummation of the transactions by Fleet and FBG
hereunder; and (vi) the Exchanged Common Stock has been duly authorized by all
necessary corporate action, is validly issued, fully paid and nonassessable,
will not subject the holders thereof to personal liability and will not be
subject to preemptive rights of any other stockholder of Fleet.
(b) The Partnerships hereby represent and warrant to Fleet
and FBG that (i) each of the Partnerships has full partnership power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby; (ii) the execution, delivery and performance of this
Agreement by each of the Partnerships has been duly authorized by all
necessary partnership action; (iii) this Agreement has been duly and
validly executed and delivered by the Partnerships, and constitutes the
valid and binding obligation of the Partnerships, enforceable against them
in accordance with its terms, except as (A) the enforceability hereof may
be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (B) the
enforceability of equitable remedies may be limited by equitable principles
of general applicability; (iv) the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby and the compliance by the Partnerships with any of the provisions hereof
will not conflict with, violate or result in a breach of any provision of,
or constitute a default (or an event, which, with notice or lapse of time or
both would constitute a default) under, (1) any organizational document
of the Partnerships or the General Partner (as defined in the Stock
<PAGE>
Purchase Agreement) or (2) any mortgage, note, indenture, deed of trust, lease,
loan agreement or other agreement or instrument of the Partnerships or the
General Partner or any permit, concession, grant, franchise, license, judgment,
order, decree, ruling, injunction, statute, law, ordinance, rule or regulation
applicable to the Partnerships or the General Partner or their respective
properties other than any such conflict, violation, breach or default under
clause (2) which will not materially and adversely affect the consummation of
the transactions contemplated hereby; (v) no consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required on the part of the Partnerships or the General Partner in
connection with the execution, delivery and performance of this Agreement by
the Partnerships and the consummation of the transactions by the Partnerships
hereunder; (vi) the Partnerships are acquiring the Exchanged Common Stock
solely for the purpose of investment and not with a view to, or for resale in
connection with, any distribution thereof in violation of the Securities Act;
and (vii) the Partnerships have been provided full access to all information
deemed relevant by the Partnerships relating to their investment in the
Exchanged Common Stock and Fleet has made available to the Partnerships the
opportunity to ask questions and receive answers and to obtain information
which Fleet possesses or can acquire without unreasonable effort or expense.
5. Miscellaneous.
a. Notices. All notices and other communications
hereunder shall be in writing and delivered in accordance with the provisions
of the Stock Purchase Agreement.
b. Entire Agreement; Amendments. This Agreement, the
Stock Purchase Agreement (as amended hereby), the Registration Rights Agreement
(as amended hereby), and the Rights and the documents described herein and
therein or attached or delivered pursuant hereto or thereto set forth the
entire agreement between the parties hereto with respect to the transactions
contemplated by this Agreement. Any provision of this Agreement may be amended
or modified in whole or in part at any time by an agreement in writing among
the parties hereto executed in the same manner as this Agreement. No failure
on the part of any party to exercise, and no delay in exercising, any right
shall operate as a waiver thereof nor shall any single or partial exercise by
any party of any right preclude any other or future exercise thereof or the
exercise of any other right. No investigation by the Partnerships of Fleet or
FBG prior to or after the date hereof shall stop or prevent the Partnerships
from exercising any right hereunder or be deemed to be a waiver of any such
right.
c. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to constitute an original,
but all of which together shall constitute one and the same document.
d. Governing Law. This Agreement shall be governed by,
and interpreted in accordance with, the laws of the State of Rhode Island
applicable to contracts made and to be performed in that State.
e. Public Announcements. Subject to each party's
disclosure obligations imposed by law and the confidentiality provisions
contained in the Stock Purchase Agreement, each of the parties hereto will
cooperate with each other in the development and distribution of all news
releases and other public information disclosures with respect to this
Agreement and any of the transactions contemplated hereby, and no party hereto
<PAGE>
will make any news release or disclosure without first consulting with each
other party hereto.
f. Expenses. Each party hereto shall bear its own costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including the fees and expenses of its financial advisors,
accountants and counsel.
g. Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, Fleet's successors and assigns and each Partnership's successors
and assigns. The provisions hereof shall also inure to the benefit of each
limited and general partner in the Partnerships. Subject to applicable law,
the Partnerships may assign their rights under this Agreement to any Affiliate,
but no such assignment shall relieve such Partnership of its obligations
hereunder.
h. Captions. The captions contained in this Agreement
are for reference purposes only and are not part of this Agreement.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed
by the parties hereto or by their respective duly authorized officers, all as
of the date first above written.
FLEET FINANCIAL GROUP, INC.
By:_____________________________________
Name:
Title:
FLEET BANKING GROUP, INC.
By:_____________________________________
Name:
Title:
KKR PARTNERS II, L.P.
By: KKR ASSOCIATES, its General Partner
By:_____________________________________
Name:
Title:
WHITEHALL ASSOCIATES, L.P.
By: KKR ASSOCIATES, its General Partner
By:_____________________________________
Name:
Title:
