PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is entered into as of the 29th day of September,
2000 by and among FLEETBOSTON FINANCIAL CORPORATION, a Rhode Island
corporation (formerly Fleet Financial Group, Inc.) ("FleetBoston"), WHITEHALL
ASSOCIATES, L.P., a Delaware limited partnership ("Whitehall") and KKR
PARTNERS II, L.P., a Delaware limited partnership ("KKR", and collectively
with Whitehall, the "Partnerships").
WITNESSETH THAT:
WHEREAS, FleetBoston, Fleet Banking Group, Inc. ("FBG") and the
Partnerships entered into a Stock Purchase Agreement dated July 12, 1991, as
amended by an Exchange Agreement (the "Exchange Agreement") dated as of
December 31, 1995 (as amended, the "Stock Purchase Agreement"); and
WHEREAS, FBG was merged into FleetBoston in 1996; and
WHEREAS, pursuant to the Stock Purchase Agreement, FleetBoston issued to
the Partnerships rights to purchase (the "Rights") an aggregate of 13,000,000
shares of FleetBoston's common stock, $.01 par value (the "Common Stock"), as
adjusted to reflect a 2-for-1 stock split effected by FleetBoston in 1998
(the "Stock Split"); and
WHEREAS, the Partnerships notified FleetBoston on September 13, 2000 of
their intention to exercise the Rights and the value of the Rights was
determined on such date; and
WHEREAS, FleetBoston has agreed to purchase, and the Partnerships have agreed
to sell, the Rights in accordance with the terms and subject to the
conditions set forth herein and in the Rights.
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained and intending to be legally bound hereby, the parties hereby
agree as follows:
1. Purchase. Subject to the terms and conditions of this Agreement,
FleetBoston hereby agrees to purchase, and the Partnerships hereby agree to
sell, the Rights effective the date hereof.
2. Purchase Price. The purchase price per Right (the "Purchase
Price") shall be equal to (a) $42.72 less (b) $8.825, which represents the
exercise price per Right after giving effect to the Stock Split. The
aggregate Purchase Price for all of the Rights shall be equal to
$440,635,000. The Purchase Price shall be paid by wire transfer of
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immediately available funds to an account or accounts previously specified by
the Partnerships in writing to FleetBoston.
3. Delivery of Rights Certificates. The Rights Certificates shall be
delivered to Geoffrey Etherington, III, Esq., Edwards & Angell, LLP, 750
Lexington Avenue, New York, New York 10022 and shall be held in escrow until
verbal confirmation from the Partnerships or their counsel that the wire
transfer of the Purchase Price has been received.
4. Representations and Warranties.
(a) FleetBoston hereby represents and warrants to the
Partnerships that (i) it has full corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby; (ii)
the execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate action; (iii) this Agreement has been
duly and validly executed and delivered, and constitutes the valid and
binding obligation of FleetBoston, enforceable against it in accordance with
its terms, except as (A) the enforceability hereof may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (B) the enforceability of
equitable remedies may be limited by equitable principles of general
applicability; (iv) the execution, delivery and performance of this
Agreement, the consummation of the transactions by FleetBoston contemplated
hereby and the compliance by FleetBoston with any of the provisions hereof
will not conflict with, violate or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of or
accelerate the performance required by, or result in a right of termination
or acceleration under, (1) any provision of the articles of incorporation or
by-laws of FleetBoston or (2)(x) any mortgage, note, indenture, deed of
trust, lease, loan agreement or other agreement or instrument, or (y) any
permit, concession, grant, franchise, license, judgment, order, decree,
ruling, injunction, statute, law, ordinance, rule or regulation, in the case
of (x) or (y), applicable to FleetBoston or its properties or assets, except
for such conflicts, violations, breaches, defaults, terminations and
accelerations which do not have, or could not be reasonably expected to have,
a Material Adverse Effect (as defined in the Stock Purchase Agreement); and
(v) no consent, approval, order or filing with any governmental authority is
required in connection with the execution, delivery and performance of this
Agreement by FleetBoston and the consummation of the transactions by
FleetBoston hereunder.
(b) Each Partnership hereby represents and warrants to FleetBoston
that (i) it has full partnership power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby; (ii) the
execution, delivery and performance of this Agreement by each of the
Partnerships has been duly authorized by all necessary partnership action;
(iii) this Agreement has been duly and validly executed and delivered by the
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Partnerships, and constitutes the valid and binding obligation of the
Partnerships, enforceable against each of them in accordance with its terms,
except as (A) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (B) the enforceability of equitable remedies
may be limited by equitable principles of general applicability; (iv) the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby and the compliance by the Partnerships
with any of the provisions hereof will not conflict with, violate or result
in a breach of any provision of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, (1)
any organizational document of the Partnerships or the General Partner (as
defined in the Stock Purchase Agreement) or (2) any mortgage, note,
indenture, deed of trust, lease, loan agreement or other agreement or
instrument of the Partnerships or the General Partner or any permit,
concession, grant, franchise, license, judgment, order, decree, ruling,
injunction, statute, law, ordinance, rule or regulation applicable to the
Partnerships or the General Partner or their respective properties other than
any such conflict, violation, breach or default under clause (2) which will
not materially and adversely affect the consummation of the transactions
contemplated hereby; (v) no consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental authority is
required on the part of the Partnerships or the General Partner in connection
with the execution, delivery and performance of this Agreement by the
Partnerships and the consummation of the transactions by the Partnerships
hereunder; (vi) the Partnerships are the owners of the Rights, free and clear
of any and all encumbrance, right of first refusal, right of first offer,
escrow provision or arrangement, mortgage, pledge, lien, charge or other
security interest of any kind whatsoever ("Liens"); and (vii) upon
consummation of the transactions contemplated by this Agreement, FleetBoston
will own the Rights free and clear of all Liens (other than any Liens created
or incurred by FleetBoston).
5. Miscellaneous.
(a) Notices. All notices and other communications hereunder
shall be in writing and delivered in accordance with the provisions of the
Stock Purchase Agreement.
(b) Entire Agreement; Amendments. This Agreement, the Rights
Certificates and the documents described herein and therein or attached or
delivered pursuant hereto or thereto set forth the entire agreement between
the parties hereto with respect to the transactions contemplated by this
Agreement. Any provision of this Agreement may be amended or modified in
whole or in part at any time by an agreement in writing among the parties
hereto executed in the same manner as this Agreement. No failure on the part
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of any party to exercise, and no delay in exercising, any right shall operate
as a waiver thereof nor shall any single or partial exercise by any party of
any right preclude any other or future exercise thereof or the exercise of
any other right.
(c) Confirmation of Prior Agreements. The parties hereby
confirm that the Stock Purchase Agreement and Exchange Agreement shall remain
in full force and effect except that upon delivery of and payment by
FleetBoston for the Rights as provided herein, all provisions of the Stock
Purchase Agreement and the other agreements referred to therein relating to
the Rights shall terminate and be of no further force or effect.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but
all of which together shall constitute one and the same document.
(e) Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Rhode Island
applicable to contracts made and to be performed wholly within that State.
(f) Public Announcements. Subject to each party's disclosure
obligations imposed by law and the confidentiality provisions contained in
the Stock Purchase Agreement, each of the parties hereto will cooperate with
each other in the development and distribution of all news releases and other
public information disclosures with respect to this Agreement and any of the
transactions contemplated hereby, and no party hereto will make any news
release or disclosure without first consulting with each other party hereto.
(g) Expenses. Each party hereto shall bear its own costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including the fees and expenses of its financial
advisors, accountants and counsel.
(h) Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, FleetBoston's successors and assigns and each Partnership's
successors and assigns. The provisions hereof shall also inure to the
benefit of each limited and general partner of the Partnerships.
(i) Captions. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto by their respective duly authorized officers, all as of the date first
above written.
FLEETBOSTON FINANCIAL CORPORATION
By:______________________________
Name:
Title:
KKR PARTNERS II, L.P.
By: KKR ASSOCIATES, its General Partner
By:_____________________________________
Name:
Title:
WHITEHALL ASSOCIATES, L.P.
By: KKR ASSOCIATES, its General Partner
By:___________________________________
Name:
Title:
