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) DECEMBER 10, 1997
FLEET FINANCIAL GROUP, INC.
(Exact name of registrant as specified in its charter)
RHODE ISLAND
(State or other jurisdiction of incorporation)
1-6366 05-0341324
(Commission File Number) (IRS Employer Identification No.)
ONE FEDERAL STREET, BOSTON, MASSACHUSETTS 02110
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 617-346-4000
(Former name or former address, if changed since last report)
<PAGE>
Item 5. OTHER MATERIALLY IMPORTANT EVENTS.
On December 10, 1997, Registrant closed a public offering of
10,750,000 shares of its common stock at a price to the public of
$70.375 per share. Of the 10,750,000 shares of common stock, 8,600,000
shares were offered initially in the United States and Canada by the
U.S. Underwriters and 2,150,000 shares were offered initially in a
concurrent offering outside the United States and Canada by the
International Managers.
The net proceed to the Registrant, after deducting underwriting
discounts and commissions and estimated offering expenses, are
approximately $740 million. The Registrant intends to use
approximately $500 million of the net proceeds in connection with the
acquisition of the credit card operations of Advanta Corporation and
the remaining net proceeds for general corporate purposes, principally
to extend credit to, or fund investments in, its subsidiaries.
The U.S. Underwriters were Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, UBS Securities LLC, Credit Suisse First
Boston Corporation, Goldman, Sachs & Co., Keefe, Bruyette & Woods,
Inc., Lehman Brothers Inc. and Smith Barney Inc., and the
International Managers were Merrill Lynch International, UBS Limited,
Credit Suisse First Boston (Europe) Limited, Goldman Sachs
International, Keefe, Bruyette & Woods, Inc., Lehman Brothers
International (Europe) and Smith Barney Inc.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements
Not applicable
(b) Pro Forma Financial Statements
Not applicable
(c) Exhibits
The following exhibits are filed as part of this report:
(1)(a) U.S. Purchase Agreement dated December 4, 1997 by and among
Registrant, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, UBS Securities LLC, Credit
Suisse First Boston Corporation, Goldman, Sachs & Co.,
Keefe, Bruyette & Woods, Inc., Lehman Brothers Inc., and
Smith Barney Inc.
(1)(b) International Purchase Agreement dated December 4, 1997 by
and among Registrant, Merrill Lynch International, UBS
Limited, Credit Suisse First Boston (Europe) Limited,
Goldman Sachs International, Keefe, Bruyette & Woods, Inc.,
Lehman Brothers International (Europe) and Smith Barney
Inc.
<PAGE>
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.
Registrant
By/s/William C. Mutterperl
--------------------------------
William C. Mutterperl
Secretary and General Counsel
Date: December 10, 1997
Exhibit 1(a)
FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
8,600,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
Dated: December 4, 1997
<PAGE>
TABLE OF CONTENTS
SECTION 1. Representations and Warranties 3
(a) Representations and Warranties by the Company 3
(i) Compliance with Registration Requirements 3
(ii) Incorporated Documents 4
(iii) Independent Accountants 4
(iv) Financial Statements 4
(v) No Material Adverse Change in Business 4
(vi) Good Standing of the Company 4
(vii) Capitalization 4
(viii) Authorization of Agreement 5
(ix) Authorization and Description of Securities 5
(x) Absence of Defaults and Conflicts 5
(xi) Absence of Proceedings 5
(xii) Possession of Licenses and Permits 6
(xiii) Investment Company Act 6
(b) Officer's Certificates 6
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing 6
(a) U.S. Securities 6
(b) Payment 6
(c) Denominations; Registration 7
SECTION 3. Covenants of the Company 7
(a) Compliance with Securities Regulations and
Commission Requests 7
(b) Filing of Amendments 7
(c) Delivery of Registration Statements 7
(d) Delivery of Prospectuses 8
(e) Continued Compliance with Securities Laws 8
(f) Rule 158 8
(g) Listing 8
(h) Restriction on Sale of Securities 8
(i) Reporting Requirements 9
SECTION 4. Payment of Expenses 9
(a) Expenses 9
(b) Termination of Agreement 9
SECTION 5. Conditions of U.S. Underwriters' Obligations 9
(a) Effectiveness of Registration Statement 9
(b) Opinion of Counsel for Company 9
(c) Opinion of Counsel for U.S. Underwriters 10
(d) Officers' Certificate 10
(e) Accountant's Comfort Letter 10
(f) Approval of Listing 10
(g) Purchase of International Securities 10
(h) Additional Documents 10
(i) Termination of Agreement 10
SECTION 6. Indemnification 11
(a) Indemnification of U.S. Underwriters 11
(b) Indemnification of Company, Directors and Officers 11
(c) Actions against Parties; Notification 12
(d) Settlement without Consent if Failure to Reimburse 12
SECTION 7. Contribution 12
SECTION 8. Representations, Warranties and Agreements to Survive Delivery 13
SECTION 9. Termination of Agreement 13
(a) Termination; General 13
(b) Liabilities 14
SECTION 10. Default by One or More of the U.S. Underwriters 14
SECTION 11. Notices 14
SECTION 12. Parties 14
SECTION 13. GOVERNING LAW 15
SECTION 14. Effect of Headings 15
SCHEDULES
Schedule A -- Underwriting Commitments of U.S. Underwriters
Schedule B -- Pricing Information
EXHIBITS
Exhibit A -- Form of Opinion of Company's Counsel
<PAGE>
EXECUTION COPY
FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
8,600,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
December 4, 1997
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
UBS SECURITIES LLC
as U.S. Representative(s) of the several U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, NY 10281-1209
Ladies and Gentlemen:
Fleet Financial Group, Inc., a Rhode Island corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other U.S. Underwriters
named in Schedule A hereto (collectively, the "U.S. Underwriters", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Merrill Lynch and UBS Securities LLC are acting as
representative(s) (in such capacity, the "U.S. Representative(s)"), with respect
to the issue and sale by the Company and the purchase by the U.S. Underwriters,
acting severally and not jointly, of the respective numbers of shares of Common
Stock, par value $.01 per share, of the Company ("Common Stock") set forth in
said Schedule A. The aforesaid 8,600,000 shares of Common Stock to be purchased
by the U.S. Underwriters are hereinafter called, collectively, the "U.S.
Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of 2,150,000 shares of
Common Stock (the "International Securities") through arrangements with certain
underwriters outside the United States and Canada (the "International Managers")
for which Merrill Lynch International and UBS Limited are acting as lead
manager(s) (the "Lead Manager(s)"). It is understood that the Company is not
obligated to sell and the U.S. Underwriters are not obligated to purchase any
U.S. Securities unless all of the International Securities are contemporaneously
purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", and the U.S. Securities and the
International Securities are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the U.S. Underwriters propose to make a public
offering of the U.S. Securities as soon as the U.S. Representative(s) deem(s)
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-37231), which also
constitutes, pursuant to Rule 429 under the Securities Act of 1933, as amended
(the "1933 Act"), Post-Effective Amendment No. 1 to a registration statement on
Form S-3 (No. 333-00701), covering the registration of the Securities under the
1933 Act, including the related preliminary prospectus or prospectuses. Promptly
after execution and delivery of this Agreement, the Company will either (i)
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b) or
(iii) if the Company has elected to rely on Rule 415 ("Rule 415") of the 1933
Act Regulations, prepare a prospectus suppplement relating to the U.S.
Securities and file such prospectus supplement and, if required by Rule 424(b),
a related base prospectus in accordance with the provisions of Rule 424(b). Two
forms of prospectus or prospectus supplement and accompanying prospectus are to
be used in connection with the offering and sale of the Securities: one relating
to the U.S. Securities (the "Form of U.S. Prospectus") and one relating to the
International Securities (the "Form of International Prospectus"). The Form of
International Prospectus is identical to the Form of U.S. Prospectus, except for
the front cover and back cover pages and the information under the caption
"Underwriting". The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information". Each Form of
U.S. Prospectus and Form of International Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, and each prospectus and, if applicable, prospectus supplement
relating to the Securities which bears the legend or caption "Subject to
Completion" or other simlar legend or caption, is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement". Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement", and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus and the final Form of International
Prospectus (including, if the Company has elected to rely on Rule 415, the final
U.S. prospectus supplement and the final international prospectus supplement,
each together with the final base prospectus relating to the Securities), in
each case including the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, in the forms first furnished to the
Underwriters for use in connection with the offering of the Securities are
herein called the "U.S. Prospectus" and the "International Prospectus",
respectively, and collectively, the "Prospectuses". If Rule 434 is relied on,
the terms "U.S. Prospectus" and "International Prospectus" shall refer to the
preliminary prospectus dated October 24, 1997, together with the applicable Term
Sheet and all references in this Agreement to the date of such Prospectuses
shall mean the date of the applicable Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the U.S. Prospectus, the International Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and Form of International Prospectus) or the Prospectuses (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and Form of International Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties. (a) Representations and
Warranties by the Company. The Company represents and warrants to each U.S.
Underwriter as of the date hereof and as of the Closing Time referred to in
Section 2(b) hereof, and agrees with each U.S. Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither of the Prospectuses nor any amendments or
supplements thereto, at the time the Prospectuses or any amendments or
supplements thereto were issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will 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.
If Rule 434 is used, the Company will comply with the requirements of Rule
434. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any U.S. Underwriter through the
U.S. Representative(s) expressly for use in the Registration Statement or
the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectuses, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), as applicable, and, when read
together with the other information in the Prospectuses, at the time the
Registration Statement became effective, at the time the Prospectuses were
issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectuses present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock, except for dividends paid by the Company in the ordinary course of
business consistent with past practice.
(vi) Good Standing of the Company. Each of the Company and Fleet
National Bank and Fleet Bank, National Association (the "Significant
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 Prospectuses and to enter into and perform its
obligations under this Agreement; the Company is duly qualified to do
business as a foreign corporation under the laws of the State of New York
and the laws of the Commonwealth of Massachusetts, and neither the Company
nor any Significant 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.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses). The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully paid
and nonassessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed and
delivered by the Company.
(ix) Authorization and Description of Securities. The Securities to be
purchased by the U.S. Underwriters and the International Managers from the
Company have been duly issued and have been duly authorized for sale to the
U.S. Underwriters pursuant to this Agreement and the International Managers
pursuant to the International Purchase Agreement, respectively, and, when
delivered by the Company pursuant to this Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set
forth herein and the International Purchase Agreement, respectively, will
be validly issued, fully paid and nonassessable; the Common Stock conforms
to all statements relating thereto contained in the Prospectuses and such
description conforms to the rights set forth in the instruments defining
the same; no holder of the Securities will be subject to personal liability
by reason of being such a holder; and the issuance of the Securities is not
subject to the preemptive or other similar rights of any securityholder of
the Company.
(x) Absence of Defaults and Conflicts. The execution and delivery by
the Company of, and the performance by the Company of its obligations
under, this Agreement and the International Purchase Agreement, the
delivery by the Company of the Securities and the consummation of the sale
of the Securities and the fulfillment of the terms contemplated by this
Agreement and the International Purchase Agreement will not conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under (in each case material to the Company and its subsidiaries
considered as a whole), any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease, financing agreement or similar agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation (in each case
material to the Company and its subsidiaries considered as a whole) of any
statute or any order, rule or regulation of any court or regulatory
authority or other governmental body having jurisdiction over the Company
or any of its subsidiaries or any of their properties; and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for, and the absence of which would
materially affect, the performance by the Company of its obligations under
this Agreement and the International Purchase Agreement and the delivery of
the Securities, except such approvals as will be obtained under the 1933
Act and the 1934 Act and as may be required by the securities laws of
non-U.S. jurisdictions in connection with the sale of the Securities.
(xi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the properties or assets of the Company
and its subsidiaries taken as a whole or the consummation of the
transactions contemplated in this Agreement and the International Purchase
Agreement or the performance by the Company of its obligations hereunder or
thereunder; the aggregate of all pending legal or governmental proceedings
to which the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except for such
Governmental Licenses the absence of which would not cause a Material
Adverse Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xiii) Investment Company Act. The Company is not, and upon the sale
of the Securities as contemplated by this Agreement and the International
Purchase Agreement will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the U.S.
Representative(s) or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing. (a) U.S.
Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each U.S. Underwriter, severally and not jointly, and each U.S.
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in Schedule B, the number of U.S. Securities set
forth in Schedule A opposite the name of such U.S. Underwriter, plus any
additional number of U.S. Securities which such U.S. Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the U.S. Securities shall be made at the offices of Cravath,
Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York, or at
such other place as shall be agreed upon by the Global Coordinator and the
Company, at 9:00 a.m. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 p.m. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Global Coordinator and the Company (such time and date of
payment and delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the U.S. Representative(s) for the respective accounts of the U.S. Underwriters
of certificates for the U.S. Securities to be purchased by them. It is
understood that each U.S. Underwriter has authorized the U.S. Representative(s),
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the U.S. Securities which it has agreed to purchase. Merrill
Lynch, individually and not as representative of the U.S. Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the U.S.
Securities to be purchased by any U.S. Underwriter whose funds have not been
received by the Closing Time, but such payment shall not relieve such U.S.
Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the U.S. Securities shall
be in such denominations and registered in such names as the U.S.
Representative(s) may request in writing at least one full business day before
the Closing Time. The certificates for the U.S. Securities will be made
available for examination and packaging by the U.S. Representative(s) in The
City of New York not later than 10:00 a.m. (Eastern time) on the business day
prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each U.S.
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule
430A, Rule 434 or Rule 424, as applicable, and will notify the Global
Coordinator immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectuses or any amended Prospectuses shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to the Prospectuses, whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish the Global Coordinator with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Global Coordinator or counsel for the U.S. Underwriters shall
reasonably object in writing; provided, however, that the foregoing shall not
apply to any of the Company's filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of
which such filings the Company will cause to be delivered to the Global
Coordinator promptly after being transmitted for filing with the Commission.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the U.S. Representative(s) and counsel for the U.S. Underwriters,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the U.S. Representative(s),
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the U.S.
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the period when the
U.S. Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the U.S. Prospectus (as amended or supplemented) as
such U.S. Underwriter may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the U.S. Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, the International Purchase Agreement and in
the Prospectuses. If at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the U.S. Underwriters or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that the
Prospectuses will not include any untrue statements of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement any Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements, and the Company
will furnish to the U.S. Underwriters such number of copies of such amendment or
supplement as the U.S. Underwriters may reasonably request.
(f) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(g) Listing. The Company will use its best efforts to effect the listing of
the Securities on the New York Stock Exchange.
(h) Restriction on Sale of Securities. During a period of 60 days from the
date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the International Purchase
Agreement, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans of the Company,
(D) any shares of Common Stock issued pursuant to any nonemployee director stock
plan or dividend reinvestment plan, (E) transactions identified in the foregoing
sentence pursuant to agreements in existence on the date hereof or (F) issuances
or agreements to issue Common Stock in connection with a business combination.
(i) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, the International Purchase Agreement, the
Agreement Among Managers and the Terms Agreement, the Intersyndicate Agreement
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and the
Prospectuses and any amendments or supplements thereto, (vi) the fees and
expenses of any transfer agent or registrar for the Securities and (vii) the
fees and expenses incurred in connection with the listing of the Securities on
the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the U.S.
Representative(s) in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the U.S. Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The obligations of
the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
the Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the U.S.
Representative(s) shall have received the favorable opinion, dated as of the
Closing Time, of Edwards & Angell, counsel for the Company, in form and
substance satisfactory to counsel for the U.S. Underwriters, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the U.S. Underwriters may reasonably request.
(c) Opinion of Counsel for U.S. Underwriters. At the Closing Time, the U.S.
Representative(s) shall have received the favorable opinion and letter, each
dated as of the Closing Time, of Cravath, Swaine & Moore, counsel for the U.S.
Underwriters, together with signed or reproduced copies of such opinion and
letter for each of the other U.S. Underwriters with respect to the issuance and
sale of the Securities, the Registration Statement, the Prospectuses and other
related matters as the U.S. Representative(s) may reasonably require.
(d) Officers' Certificate. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the U.S.
Representative(s) shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(e) Accountant's Comfort Letter. At the Closing Time, the U.S.
Representative(s) shall have received from KPMG Peat Marwick LLP a letter dated
such date, in form and substance satisfactory to the U.S. Representative(s),
together with signed or reproduced copies of such letter for each of the other
U.S. Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(f) Approval of Listing. At the Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(g) Purchase of International Securities. Contemporaneously with the
purchase by the U.S. Underwriters of the U.S. Securities under this Agreement,
the International Managers shall have purchased the International Securities
under the International Purchase Agreement.
(h) Additional Documents. At the Closing Time, counsel for the U.S.
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the U.S. Representative(s) and
counsel for the U.S. Underwriters.
(i) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the U.S. Representative(s) by notice to the
Company at any time at or prior to the Closing Time and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification. (a) Indemnification of U.S. Underwriters. The
Company agrees to indemnify and hold harmless each U.S. Underwriter and each
person, if any, who controls any U.S. Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary U.S. prospectus or the U.S. Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representative(s) expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary U.S. prospectus or
the U.S. Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by such U.S.
Underwriter through the U.S. Representative(s) expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the U.S. Underwriters on the other hand from the offering of the U.S.
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the U.S.
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the U.S.
Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the U.S. Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the U.S. Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the U.S. Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the U.S. Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
U.S. Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 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, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of U.S. Securities set forth opposite
their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
U.S. Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement. (a) Termination; General. The U.S.
Representative(s) may terminate this Agreement, by notice to the Company, at any
time at or prior to the Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the U.S. Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the U.S. Representative(s), impracticable
to market the Securities or to enforce contracts for the sale of the Securities,
or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by Federal, New York or Massachusetts authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or more
of the U.S. Underwriters shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the U.S. Representative(s) shall have the right, within
24 hours thereafter, to make arrangements for one or more of the nondefaulting
U.S. Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the U.S. Representative(s) shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of U.S. Securities to be purchased on such date, each of the
nondefaulting U.S. Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all nondefaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
U.S. Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any nondefaulting U.S.
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the U.S. Representative(s) or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term "U.S.
Underwriter" includes any person substituted for a U.S. Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representative(s) at North Tower,
World Financial Center, New York, NY 10281-1201, attention of Syndicate
Operations; and notices to the Company shall be directed to it at One Federal
Street, Boston, MA 02110, attention of the Senior Vice President, General
Counsel and Secretary.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the U.S. Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the U.S.
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the U.S. Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of U.S. Securities from any U.S.
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By /s/ Douglas L. Jacobs
------------------------------
Name: Douglas L. Jacobs
Title: Treasurer
Confirmed and accepted, as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
UBS SECURITIES LLC
By: MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Lee Shavel
-------------------------------------
Name: Lee Shavel
Title: Vice President
For themselves and as U.S. Representative(s) of the other
U.S. Underwriters named in Schedule A hereto.
<PAGE>
SCHEDULE A
Name of U.S. Underwriter Number of U.S.
Securities
Merrill Lynch, Pierce, Fenner & Smith 2,580,000
Incorporated
UBS Securities LLC 1,720,000
Credit Suisse First Boston Corporation 860,000
Goldman, Sachs & Co. 860,000
Keefe, Bruyette & Woods, Inc. 860,000
Lehman Brothers Inc. 860,000
Smith Barney Inc. 860,000
Total 8,600,000
<PAGE>
SCHEDULE B
FLEET FINANCIAL GROUP, INC.
8,600,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $70.375.
2. The purchase price per share for the U.S. Securities to be paid by the
several U.S. Underwriters shall be $68.875, being an amount equal to the initial
public offering price set forth above less an underwriting discount of $1.50 per
share.
<PAGE>
EXHIBIT A
Form of Opinion of Company's Counsel
To Be Delivered Pursuant to
Section 5(b)
(i) each of the Company and the Significant 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 Prospectuses; the
Company is duly qualified to do business as a foreign corporation under the laws
of the State of New York and the laws of the Commonwealth of Massachusetts and
neither the Company nor any Significant 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 of the outstanding shares of the capital stock of the Significant
Subsidiaries have been duly and validly authorized and issued and are fully paid
and (except as provided in 12 U.S.C. ss. 55 in the case of Fleet National Bank
and Fleet Bank, National Association) nonassessable, and, except as otherwise
set forth or incorporated by reference in the Prospectuses, all outstanding
shares of capital stock of the Significant 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
Prospectuses; the Securities conform to the description thereof contained in the
Prospectuses; the Securities and the preferred stock purchase rights under the
Company's Rights Agreement to which holders of the Securities will be entitled
have been duly and validly authorized and issued and, delivered to and paid for
by the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, will be fully paid and nonassessable; and
authorization for the listing of the Securities on the New York Stock Exchange
has been given, 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 Prospectuses or in a document
incorporated by reference therein, and there is no franchise, contract or other
document of a character required to be described in the Registration Statement
or Prospectuses, or to be filed as an exhibit, which is not described or filed
as required;
(v) the Registration Statement has become effective under the Act; any
required filing of the base prospectus, any preliminary prospectus and the
Prospectuses, 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); 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
Prospectuses (other than the financial statements and other financial data
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 date it became effective 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 Time the Prospectuses
include any untrue statement of a material fact or omit 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) each of the U.S. Purchase Agreement and the International Purchase
Agreement has been duly authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated by the U.S. Purchase Agreement or the International Purchase
Agreement, except such as have been obtained under the Act and such as may be
required by the securities or "blue sky" laws of any state in connection with
the purchase and distribution of the Securities as contemplated by the U.S.
Purchase Agreement and the International Purchase Agreement 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 contemplated by the U.S. Purchase Agreement or
the International Purchase Agreement nor the fulfillment of the terms of the
U.S. Purchase Agreement or the International Purchase Agreement, will conflict
with, result in a breach of, or constitute a default under the Restated Articles
of Incorporation or By-Laws of the Company or the terms of any material
indenture or other material agreement or material 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;
(ix) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement;
(x) the holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive rights under the Restated Articles of
Incorporation or By-Laws of the Company or the laws of the State of Rhode Island
to subscribe for the Securities;
(xi) the Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment Company
Act of 1940, as amended;
(xii) the form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements, with any
applicable requirements of the Restated Articles of Incorporation and By-Laws of
the Company and the requirements of the New York Stock Exchange; and
(xiii) The information in the Prospectuses under "Fleet Financial Group,
Inc.--Regulatory Matters" has been reviewed by such counsel and is correct in
all material respects.
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, the State of New York 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
U.S. 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 Prospectuses in this Exhibit A include any supplements thereto
at the Closing Time.
Exhibit 1(b)
FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
2,150,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Dated: December 4, 1997
TABLE OF CONTENTS
SECTION 1. Representations and Warranties 3
(a) Representations and Warranties by the Company 3
(i) Compliance with Registration Requirements 3
(ii) Incorporated Documents 4
(iii) Independent Accountants 4
(iv) Financial Statements 4
(v) No Material Adverse Change in Business 4
(vi) Good Standing of the Company 4
(vii) Capitalization 4
(viii) Authorization of Agreement 5
(ix) Authorization and Description of Securities 5
(x) Absence of Defaults and Conflicts 5
(xi) Absence of Proceedings 5
(xii) Possession of Licenses and Permits 6
(xiii) Investment Company Act 6
(b) Officer's Certificates 6
SECTION 2. Sale and Delivery to International Managers; Closing 6
(a) International Securities 6
(b) Payment 6
(c) Denominations; Registration 7
SECTION 3. Covenants of the Company 7
(a) Compliance with Securities Regulations and
Commission Requests 7
(b) Filing of Amendments 7
(c) Delivery of Registration Statements 7
(d) Delivery of Prospectuses 8
(e) Continued Compliance with Securities Laws 8
(f) Rule 158 8
(g) Listing 8
(h) Restriction on Sale of Securities 8
(i) Reporting Requirements 9
SECTION 4. Payment of Expenses 9
(a) Expenses 9
(b) Termination of Agreement 9
SECTION 5. Conditions of International Managers' Obligations 9
(a) Effectiveness of Registration Statement 9
(b) Opinion of Counsel for Company 9
(c) Opinion of Counsel for International Managers 10
(d) Officers' Certificate 10
(e) Accountant's Comfort Letter 10
(f) Approval of Listing 10
(g) Purchase of U.S. Securities 10
(h) Additional Documents 10
(i) Termination of Agreement 10
SECTION 6. Indemnification 11
(a) Indemnification of International Managers 11
(b) Indemnification of Company, Directors and Officers 11
(c) Actions against Parties; Notification 12
(d) Settlement without Consent if Failure to Reimburse 12
SECTION 7. Contribution 12
SECTION 8. Representations, Warranties and Agreements to Survive Delivery 13
SECTION 9. Termination of Agreement 13
(a) Termination; General 13
(b) Liabilities 14
SECTION 10. Default by One or More of the International Managers 14
SECTION 11. Notices 14
SECTION 12. Parties 14
SECTION 13. GOVERNING LAW 15
SECTION 14. Effect of Headings 15
SCHEDULES
Schedule A -- Underwriting Commitments of International Managers
Schedule B -- Pricing Information
EXHIBITS
Exhibit A -- Form of Opinion of Company's Counsel
<PAGE>
EXECUTION COPY
FLEET FINANCIAL GROUP, INC.
(a Rhode Island corporation)
2,150,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
December 4, 1997
MERRILL LYNCH INTERNATIONAL
UBS LIMITED
as Lead Manager(s) of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Fleet Financial Group, Inc., a United States company incorporated in the
State of Rhode Island (the "Company"), confirms its agreement with Merrill Lynch
International ("MLI") and each of the other underwriters named in Schedule A
hereto (collectively, the "International Managers", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom MLI and UBS Limited are acting as lead manager(s) (in such
capacity, the "Lead Manager(s)"), with respect to the issue and sale by the
Company and the purchase by the International Managers, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $.01 per
share, of the Company ("Common Stock") set forth in said Schedule A. The
aforesaid 2,150,000 shares of Common Stock to be purchased by the International
Managers are hereinafter called, collectively, the "International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 8,600,000 shares of Common Stock
(the "U.S. Securities") through arrangements with certain managing underwriters
in the United States (the "U.S. Underwriters") for which Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, and UBS Securities LLC are
acting as representative(s) (the "U.S. Representative(s)"). It is understood
that the Company is not obligated to sell and the International Managers are not
obligated to purchase, any International Securities unless all of the U.S.
Securities are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", and the International Securities and the
U.S. Securities are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Manager(s)
deem(s) advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-37231), which also
constitutes, pursuant to Rule 429 under the Securities Act of 1933, as amended
(the "1933 Act"), Post-Effective Amendment No. 1 to a registration statement on
Form S-3 (No. 333-00701), covering the registration of the Securities under the
1933 Act, including the related preliminary prospectus or prospectuses. Promptly
after execution and delivery of this Agreement, the Company will either (i)
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b) or
(iii) if the Company has elected to rely on Rule 415 ("Rule 415") of the 1933
Act Regulations, prepare a prospectus suppplement relating to the International
Securities and file such prospectus supplement and, if required by Rule 424(b),
a related base prospectus in accordance with the provisions of Rule 424(b). Two
forms of prospectus or prospectus supplement and accompanying prospectus are to
be used in connection with the offering and sale of the Securities: one relating
to the International Securities (the "Form of International Prospectus") and one
relating to the U.S. Securities (the "Form of U.S. Prospectus"). The Form of
U.S. Prospectus is identical to the Form of International Prospectus, except for
the front cover and back cover pages and the information under the caption
"Underwriting". The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information". Each Form of
International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, and each prospectus and, if applicable, prospectus supplement
relating to the Securities which bears the legend or caption "Subject to
Completion" or other simlar legend or caption, is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement". Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement", and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final Form of International Prospectus and the final Form of U.S.
Prospectus (including, if the Company has elected to rely on Rule 415, the final
international prospectus supplement and the final U.S. prospectus supplement,
each together with the final base prospectus relating to the Securities), in
each case including the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, in the forms first furnished to the
Underwriters for use in connection with the offering of the Securities are
herein called the "International Prospectus" and the "U.S. Prospectus",
respectively, and collectively, the "Prospectuses". If Rule 434 is relied on,
the terms "International Prospectus" and "U.S. Prospectus" shall refer to the
preliminary prospectus dated October 24, 1997, together with the applicable Term
Sheet and all references in this Agreement to the date of such Prospectuses
shall mean the date of the applicable Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the International Prospectus, the U.S. Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of
International Prospectus and Form of U.S. Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of International Prospectus and Form of U.S. Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties. (a) Representations and
Warranties by the Company. The Company represents and warrants to each
International Manager as of the date hereof and as of the Closing Time referred
to in Section 2(b) hereof, and agrees with each International Manager, as
follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither of the Prospectuses nor any amendments or
supplements thereto, at the time the Prospectuses or any amendments or
supplements thereto were issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will 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.
If Rule 434 is used, the Company will comply with the requirements of Rule
434. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through the Lead Manager(s) expressly for use in the Registration
Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectuses, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), as applicable, and, when read
together with the other information in the Prospectuses, at the time the
Registration Statement became effective, at the time the Prospectuses were
issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectuses present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock, except for dividends paid by the Company in the ordinary course of
business consistent with past practice.
(vi) Good Standing of the Company. Each of the Company and Fleet
National Bank and Fleet Bank, National Association (the "Significant
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 Prospectuses and to enter into and perform its
obligations under this Agreement; the Company is duly qualified to do
business as a foreign corporation under the laws of the State of New York
and the laws of the Commonwealth of Massachusetts, and neither the Company
nor any Significant 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.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses). The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully paid
and nonassessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by the
Company.
(ix) Authorization and Description of Securities. The Securities to be
purchased by the International Managers and the U.S. Underwriters from the
Company have been duly issued and have been duly authorized for sale to the
International Managers pursuant to this Agreement and the U.S. Underwriters
pursuant to the U.S. Purchase Agreement, respectively, and, when delivered
by the Company pursuant to this Agreement and the U.S. Purchase Agreement,
respectively, against payment of the consideration set forth herein and the
U.S. Purchase Agreement, respectively, will be validly issued, fully paid
and nonassessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectuses and such description conforms to the
rights set forth in the instruments defining the same; no holder of the
Securities will be subject to personal liability by reason of being such a
holder; and the issuance of the Securities is not subject to the preemptive
or other similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. The execution and delivery by
the Company of, and the performance by the Company of its obligations
under, this Agreement and the U.S. Purchase Agreement, the delivery by the
Company of the Securities and the consummation of the sale of the
Securities and the fulfillment of the terms contemplated by this Agreement
and the U.S. Purchase Agreement will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under
(in each case material to the Company and its subsidiaries considered as a
whole), any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease, financing agreement or similar agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such actions
result in any violation (in each case material to the Company and its
subsidiaries considered as a whole) of any statute or any order, rule or
regulation of any court or regulatory authority or other governmental body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for, and
the absence of which would materially affect, the performance by the
Company of its obligations under this Agreement and the U.S. Purchase
Agreement and the delivery of the Securities, except such approvals as will
be obtained under the 1933 Act and the 1934 Act and as may be required by
the securities laws of non-U.S. jurisdictions in connection with the sale
of the Securities.
(xi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the properties or assets of the Company
and its subsidiaries taken as a whole or the consummation of the
transactions contemplated in this Agreement and the U.S. Purchase Agreement
or the performance by the Company of its obligations hereunder or
thereunder; the aggregate of all pending legal or governmental proceedings
to which the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except for such
Governmental Licenses the absence of which would not cause a Material
Adverse Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xiii) Investment Company Act. The Company is not, and upon the sale
of the Securities as contemplated by this Agreement and the U.S. Purchase
Agreement will not be, an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined in the Investment Company
Act of 1940, as amended.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the Lead
Manager(s) or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing. (a)
International Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each International Manager, severally and not jointly,
and each International Manager, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
International Securities set forth in Schedule A opposite the name of such
International Manager, plus any additional number of International Securities
which such International Manager may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the International Securities shall be made at the offices of
Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York,
or at such other place as shall be agreed upon by the Global Coordinator and the
Company, at 9:00 a.m. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 p.m. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Global Coordinator and the Company (such time and date of
payment and delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Lead Manager(s) for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Manager(s),
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the International Securities which it has agreed to
purchase. MLI, individually and not as representative of the International
Managers, may (but shall not be obligated to) make payment of the purchase price
for the International Securities to be purchased by any International Manager
whose funds have not been received by the Closing Time, but such payment shall
not relieve such International Manager from its obligations hereunder.
(c) Denominations; Registration. Certificates for the International
Securities shall be in such denominations and registered in such names as the
Lead Manager(s) may request in writing at least one full business day before the
Closing Time. The certificates for the International Securities will be made
available for examination and packaging by the Lead Manager(s) in The City of
New York not later than 10:00 a.m. (Eastern time) on the business day prior to
the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule
430A, Rule 434 or Rule 424, as applicable, and will notify the Global
Coordinator immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectuses or any amended Prospectuses shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to the Prospectuses, whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish the Global Coordinator with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Global Coordinator or counsel for the International Managers shall
reasonably object in writing; provided, however, that the foregoing shall not
apply to any of the Company's filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of
which such filings the Company will cause to be delivered to the Global
Coordinator promptly after being transmitted for filing with the Commission.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Lead Manager(s) and counsel for the International Managers,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Lead Manager(s), without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the International
Managers. The copies of the Registration Statement and each amendment thereto
furnished to the International Managers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, the U.S. Purchase Agreement and in the
Prospectuses. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that the
Prospectuses will not include any untrue statements of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement any Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements, and the Company
will furnish to the International Managers such number of copies of such
amendment or supplement as the International Managers may reasonably request.
(f) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(g) Listing. The Company will use its best efforts to effect the listing of
the Securities on the New York Stock Exchange.
(h) Restriction on Sale of Securities. During a period of 60 days from the
date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the U.S. Purchase Agreement,
(B) any shares of Common Stock issued by the Company upon the exercise of an
option or warrant or the conversion of a security outstanding on the date
hereof, (C) any shares of Common Stock issued or options to purchase Common
Stock granted pursuant to existing employee benefit plans of the Company, (D)
any shares of Common Stock issued pursuant to any nonemployee director stock
plan or dividend reinvestment plan, (E) transactions identified in the foregoing
sentence pursuant to agreements in existence on the date hereof or (F) issuances
or agreements to issue Common Stock in connection with a business combination.
(i) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, the U.S. Purchase Agreement, the Agreement Among
Managers and the Terms Agreement, the Intersyndicate Agreement and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the International Managers and the U.S.
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and the
Prospectuses and any amendments or supplements thereto, (vi) the fees and
expenses of any transfer agent or registrar for the Securities and (vii) the
fees and expenses incurred in connection with the listing of the Securities on
the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the Lead
Manager(s) in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the International Managers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
the Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the International Managers. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the Lead
Manager(s) shall have received the favorable opinion, dated as of the Closing
Time, of Edwards & Angell, counsel for the Company, in form and substance
satisfactory to counsel for the International Managers, together with signed or
reproduced copies of such letter for each of the other International Managers to
the effect set forth in Exhibit A hereto and to such further effect as counsel
to the International Managers may reasonably request.
(c) Opinion of Counsel for International Managers. At the Closing Time, the
Lead Manager(s) shall have received the favorable opinion and letter, each dated
as of the Closing Time, of Cravath, Swaine & Moore, counsel for the
International Managers, together with signed or reproduced copies of such
opinion and letter for each of the other International Managers with respect to
the issuance and sale of the Securities, the Registration Statement, the
Prospectuses and other related matters as the Lead Manager(s) may reasonably
require.
(d) Officers' Certificate. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Lead
Manager(s) shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(e) Accountant's Comfort Letter. At the Closing Time, the Lead Manager(s)
shall have received from KPMG Peat Marwick LLP a letter dated such date, in form
and substance satisfactory to the Lead Manager(s), together with signed or
reproduced copies of such letter for each of the other International Managers
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectuses.
(f) Approval of Listing. At the Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(g) Purchase of U.S. Securities. Contemporaneously with the purchase by the
International Managers of the International Securities under this Agreement, the
U.S. Underwriters shall have purchased the U.S. Securities under the U.S.
Purchase Agreement.
(h) Additional Documents. At the Closing Time, counsel for the
International Managers shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the Lead
Manager(s) and counsel for the International Managers.
(i) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Lead Manager(s) by notice to the Company at
any time at or prior to the Closing Time and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification. (a) Indemnification of International Managers.
The Company agrees to indemnify and hold harmless each International Manager and
each person, if any, who controls any International Manager within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary international prospectus or the International Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by MLI), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through the Lead Manager(s) expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
international prospectus or the International Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each International
Manager severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary international
prospectus or the International Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager through the Lead Manager(s)
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary international prospectus or the International Prospectus (or
any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by MLI, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the International Managers on the other hand from the offering of the
International Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the International Managers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 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, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any International Manager or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the International Securities to the International Managers.
SECTION 9. Termination of Agreement. (a) Termination; General. The Lead
Manager(s) may terminate this Agreement, by notice to the Company, at any time
at or prior to the Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the International Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Lead Manager(s), impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by Federal, New York or Massachusetts authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If one or
more of the International Managers shall fail at the Closing Time to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Lead Manager(s) shall have the right, within
24 hours thereafter, to make arrangements for one or more of the nondefaulting
International Managers, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Lead Manager(s) shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of
the nondefaulting International Managers shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all nondefaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any nondefaulting International
Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default. In the event of
any such default which does not result in a termination of this Agreement,
either the Lead Manager(s) or the Company shall have the right to postpone the
Closing Time for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "International Manager"
includes any person substituted for an International Manager under this Section
10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Manager(s) at Ropemaker
Place, 25 Ropemaker Street, London EC2Y 9LY, England, attention of ; and notices
to the Company shall be directed to it at One Federal Street, Boston, MA 02110,
attention of the Senior Vice President, General Counsel and Secretary.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the International Managers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
International Managers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the International Managers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of International
Securities from any International Manager shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the International Managers and the Company in accordance with its terms.
Very truly yours,
FLEET FINANCIAL GROUP, INC.
By /s/ Douglas L. Jacobs
----------------------------
Name: Douglas L. Jacobs
Title: Treasurer
Confirmed and accepted, as of the date first above written:
MERRILL LYNCH INTERNATIONAL
UBS LIMITED
By: MERRILL LYNCH INTERNATIONAL
By /s/ Lee Shavel
--------------------------------------
Name: Lee Shavel
Title: Vice President
For themselves and as Lead Manager(s) of the other International Managers named
in Schedule A hereto.
<PAGE>
SCHEDULE A
Name of International Manager Number of
International
Securities
Merrill Lynch International 645,000
UBS Limited 430,000
Credit Suisse First Boston (Europe) Limited 215,000
Goldman Sachs International 215,000
Keefe, Bruyette & Woods, Inc. 215,000
Lehman Brothers International (Europe) 215,000
Smith Barney Inc. 215,000
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Total 2,150,000
<PAGE>
SCHEDULE B
FLEET FINANCIAL GROUP, INC.
2,150,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $70.375.
2. The purchase price per share for the International Securities to be paid
by the several International Managers shall be $68.875, being an amount equal to
the initial public offering price set forth above less an underwriting discount
of $1.50 per share.
<PAGE>
EXHIBIT A
Form of Opinion of Company's Counsel
To Be Delivered Pursuant to
Section 5(b)
(i) each of the Company and the Significant 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 Prospectuses; the
Company is duly qualified to do business as a foreign corporation under the laws
of the State of New York and the laws of the Commonwealth of Massachusetts and
neither the Company nor any Significant 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 of the outstanding shares of the capital stock of the Significant
Subsidiaries have been duly and validly authorized and issued and are fully paid
and (except as provided in 12 U.S.C. ss. 55 in the case of Fleet National Bank
and Fleet Bank, National Association) nonassessable, and, except as otherwise
set forth or incorporated by reference in the Prospectuses, all outstanding
shares of capital stock of the Significant 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
Prospectuses; the Securities conform to the description thereof contained in the
Prospectuses; the Securities and the preferred stock purchase rights under the
Company's Rights Agreement to which holders of the Securities will be entitled
have been duly and validly authorized and issued and, delivered to and paid for
by the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, will be fully paid and nonassessable; and
authorization for the listing of the Securities on the New York Stock Exchange
has been given, 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 Prospectuses or in a document
incorporated by reference therein, and there is no franchise, contract or other
document of a character required to be described in the Registration Statement
or Prospectuses, or to be filed as an exhibit, which is not described or filed
as required;
(v) the Registration Statement has become effective under the Act; any
required filing of the base prospectus, any preliminary prospectus and the
Prospectuses, 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); 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
Prospectuses (other than the financial statements and other financial data
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 date it became effective 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 Time the Prospectuses
include any untrue statement of a material fact or omit 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) each of the U.S. Purchase Agreement and the International Purchase
Agreement has been duly authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated by the U.S. Purchase Agreement or the International Purchase
Agreement, except such as have been obtained under the Act and such as may be
required by the securities or "blue sky" laws of any state in connection with
the purchase and distribution of the Securities as contemplated by the U.S.
Purchase Agreement and the International Purchase Agreement 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 contemplated by the U.S. Purchase Agreement or
the International Purchase Agreement nor the fulfillment of the terms of the
U.S. Purchase Agreement or the International Purchase Agreement, will conflict
with, result in a breach of, or constitute a default under the Restated Articles
of Incorporation or By-Laws of the Company or the terms of any material
indenture or other material agreement or material 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;
(ix) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement;
(x) the holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive rights under the Restated Articles of
Incorporation or By-Laws of the Company or the laws of the State of Rhode Island
to subscribe for the Securities;
(xi) the Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment Company
Act of 1940, as amended;
(xii) the form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements, with any
applicable requirements of the Restated Articles of Incorporation and By-Laws of
the Company and the requirements of the New York Stock Exchange; and
(xiii) The information in the Prospectuses under "Fleet Financial Group,
Inc.--Regulatory Matters" has been reviewed by such counsel and is correct in
all material respects.
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,
the State of New York 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 U.S.
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 Prospectuses in this Exhibit A include any supplements thereto
at the Closing Time.
