Exhibit 1
FLEET FINANCIAL GROUP INC.
Preferred Stock
($1 par value)
Underwriting Agreement
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New York, New York
March 26, 1996
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Fleet Financial Group, Inc., a Rhode Island corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), the number of shares of preferred stock of the
Company identified in Schedule I hereto (said shares to be issued and sold
by the Company being hereinafter called the "Underwritten Securities").
The Company also proposes to grant to the Underwriters an option to
purchase up to such additional number of shares of preferred stock of the
Company as is specified in Schedule I hereto (the "Option Securities";
together with the Underwritten Securities, the "Securities") to cover over-
allotments. If "Depositary Receipt Arrangements" is specified in
Schedule I hereto, the Securities are to be deposited by you or on your
behalf against delivery of Depositary Receipts (the "Depositary Receipts")
to be issued by the bank or trust company identified in Schedule I hereto
as Depositary (the "Depositary"), under the deposit agreement described in
Schedule I hereto (the "Deposit Agreement"), among the Company, the
Depositary and the holders from time to time of the Depositary Receipts
issued thereunder. Any Depositary Receipts will evidence Depositary Shares
(the "Depositary Shares") and each Depositary Share will represent a
fraction of a Security, as specified in Schedule I hereto. Except where
the context otherwise requires, references to Securities herein shall
include any related Depositary Shares and associated Depositary Receipts.
If the firm or firms listed in Schedule II hereto include only the firm or
firms listed in
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Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
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warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in
paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed offering (as
so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a
basic prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective.
The offering of the Securities is a Delayed Offering and,
accordingly, it is not necessary that any further information
with respect to the Securities and the offering thereof required
by the Act and the rules thereunder to be included in the Final
Prospectus have been included in an amendment to such
registration statement prior to the Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus
included in such registration statement relating to the
Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not
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completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final Prospectus) as
the company has advised you, prior to the Execution Time, will be
included or made therein. If the Rule 434 Delivery Alternative
is used, the Company will also file the Rule 434 Term Sheet in
accordance with Rule 434. As filed, such Rule 434 Term Sheet
shall contain all the information required by Rule 434, and
except to the extent the Representatives shall agree in writing
to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein. Upon your request, but not without
your agreement, the Company will also file a Rule 462(b)
Registration Statement in accordance with Rule 462(b).
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of such
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In
the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities
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and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with
all other such required information, with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or
made therein. If the Rule 434 Delivery Alternative is used, the
Company will also file the Rule 434 Term Sheet in accordance with
Rule 434. As filed, such Rule 434 Term Sheet shall contain all
the information required by Rule 434, and except to the extent
the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
Upon your request, but not without your agreement, the Company
will also file a Rule 462(b) Registration Statement in accordance
with Rule 462(b).
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the
Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the
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statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
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no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement, any post-effective
amendment or amendments thereto and any Rule 462(b) Registration
Statement became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred
to in paragraph (a) above contained in the Registration Statement at
the Effective Date including, in the case of a Non-Delayed Offering,
any Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case of a Non-
Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the Registration Statement
at the Effective Date. If the Rule 434 Delivery Alternative is used,
such term shall also include the Basic Prospectus and the Rule 434
Term Sheet, taken together. "Registration Statement" shall
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mean the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements,
as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as
so amended. Such term shall include any Rule 430A Information and
Rule 434 Information deemed to be included therein at the Effective
Date as provided by Rule 430A and Rule 434, respectively. "Rule 415",
"Rule 424", "Rule 43OA", "Rule 434", "Rule 462(b)" and "Regulation S-
K" refer to such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. "Rule 434
Delivery Alternative" shall mean the delivery alternative permitted by
Rule 434. "Rule 434 Information" shall mean any information to be
included in a Rule 434 Term Sheet. "Rule 434 Term Sheet" shall mean
the term sheet or abbreviated term sheet delivered by the Underwriters
to investors and filed by the Company with the Commission pursuant to
Rule 434. "Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the final Delayed Offering covered by the
initial Registration Statement. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Regis-
tration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the
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Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. A "Non-Delayed Offering" shall mean an offering
of securities which is intended to commence promptly after the
effective date of a registration statement, with the result that,
pursuant to Rules 415 and 430A, all information (other than Rule 430A
information) with respect to the securities so offered must be
included in such registration statement at the effective date thereof.
A "Delayed Offering" shall mean an offering of securities pursuant to
Rule 415 which does not commence promptly after the effective date of
a registration statement, with the result that only information
required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the securities
so offered. Whether the offering of the Securities is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
2. Purchase and Sale. (a)(i) Subject to the terms and
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conditions and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto, the number
of shares of the Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides for the sale
of Securities pursuant to delayed delivery arrangements, the respective
number of shares of Securities to be purchased by the Underwriters shall be
as set forth in Schedule II hereto less the respective number of shares of
Contract Securities determined as provided in Section 2(a)(ii) below.
Securities to be purchased by the Underwriters are herein sometimes called
the "Underwriters' Securities" and Securities to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities".
(ii) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes
therein as the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor, the
Company will pay to the
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Representatives, for the account of the Underwriters, on the Closing Date,
the percentage set forth in Schedule I hereto of the aggregate liquidation
preference of the Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The
Company will enter into Delayed Delivery Contracts in all cases where sales
of Contract Securities arranged by the Underwriters have been approved by
the Company but, except as the Company may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum number of
shares set forth in Schedule I hereto and the aggregate number of shares of
Contract Securities may not exceed the maximum aggregate number of shares
set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed
Delivery Contracts. The number of shares of Securities to be purchased by
each Underwriter as set forth in Schedule II hereto shall be reduced by the
number of shares which shall bear the same proportion to the total number
of shares of Contract Securities as the number of shares of Securities set
forth opposite the name of such Underwriter bears to the aggregate number
of shares set forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such proportion
and so advise the Company in writing; provided, however, that the total
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number of shares of Securities to be purchased by all Underwriters shall be
the aggregate number of shares set forth in Schedule II hereto less the
aggregate number of shares of Contract Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, the Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or
in part at any time (but not more than once) on or before the 30th day
after the date of the Final Prospectus upon written or telegraphic notice
by the Representatives to the Company setting forth the number of shares of
the Option Securities as to which the several Underwriters are exercising
the option and the settlement date. Delivery of certificates
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for the shares of Option Securities, and payment therefor, shall be made as
provided in Section 3 hereof. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the number of
shares which shall bear the same proportion to the total number of shares
of the Option Securities to be purchased by the several Underwriters an the
number of shares of Securities set forth opposite the name of such
Underwriter bears to the aggregate number of shares set forth in
Schedule II hereto, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
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Underwriters, Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such
date and time of delivery and payment for the Underwriters' Securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the
order of the Company by either certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in next-day funds
or in Federal or similar same day funds as set forth in Schedule I.
Delivery of the Underwriters' Securities shall be made at such location an
the Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at
the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names (including the
nominee for any depositary which will hold Securities to be established for
"book entry" issuance and transfer) and in such denominations as the
Representatives may request not less than three full business days in
advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York,
New York, not later than 1:00 p.m. on the business day prior to the Closing
Date.
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If the option provided for in Section 2(b) hereof is exercised
after the third business day prior to the Closing Date, the Company will
deliver (at the expense of the Company) to the Representatives, on the date
specified by the Representatives (which shall be within three business days
after exercise of said option), certificates for the Option Securities in
such names and denominations as the Representatives shall have requested
against payment of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on or by a New
York Clearing House bank and payable in next-day funds or in Federal or
similar same day funds as set forth in Schedule I. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver
to the Representatives on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities
shall be conditioned upon receipt of, supplemental opinions certificates
and letters confirming as of such date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 5 hereof.
Notwithstanding the preceding paragraphs, if "Depositary Receipt
Arrangements" is specified in Schedule I hereto, certificates representing
Securities shall be delivered in the names of the Representatives. Such
certificates shall be delivered by the Representatives to the Depositary
against delivery of Depositary Receipts representing Depositary Shares.
Such Depositary Receipts shall be issued in such denominations and
registered in such names as the Representatives shall request and shall be
made available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 p.m. on the
business day prior to the due date for delivery thereof.
4. Agreements. The Company agrees with the several Underwriters
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that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
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Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement or Rule 462(b)
Registration Statement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. If the Rule 434 Delivery
Alternative is used, the Company will also cause the Rule 434 Term
Sheet, properly completed, to be filed with the Commission pursuant to
Rule 434 within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. Upon your
request, the Company will cause the Rule 462(b) Registration
Statement, properly completed, to be filed with the Commission
pursuant to Rule 462(b) and will provide evidence satisfactory to the
Representatives of such filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective
at the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, any supplement thereto, any
Rule 434 Term Sheet or any Rule 462(b) Registration Statement shall
have been filed with the Commission pursuant to Rule 424(b),
(iii) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or
became effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Final
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Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make
the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the date set forth in Schedule I hereto, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of (i) any debt securities
issued or guaranteed by the Company, (ii) shares of any class of
capital stock of the Company (other than the
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Securities) which is preferred as to the payment of dividends, or as
to the distribution of assets upon any liquidation or dissolution of
the Company, over shares of any other class of capital stock of the
Company or if the Securities are convertible into other securities of
the Company, any of such other securities (other than shares of common
stock of the Company issued pursuant to any employee stock benefit
plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time).
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
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Cuba, and the Company further agrees that if it commences engaging in
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business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or
with any person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such business
or change, as appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Underwriters. The
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obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will became effective not
later than (i) 6:00 p.m. New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 Noon on the
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business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 p.m. New York
City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b), or if the
filing of the Rule 434 Term Sheet is required pursuant to Rule 434,
the Rule 434 Term Sheet will be filed in the manner and within the
time period required by Rule 434; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of the Company, Fleet National Bank ("Fleet Bank -
RI") and if any Depositary is a subsidiary of the Company, the
Depositary and any other subsidiary or subsidiaries which the
Representatives may reasonably request (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation or national
banking association in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct
its business as described in the Final Prospectus; the Company is
duly qualified to do business as a foreign corporation under the
laws of the State of New York; and neither the Company, nor Fleet
Bank - RI or any such other Subsidiary is required to be
qualified to do business as a foreign corporation under the laws
of any other jurisdiction; and the Company is duly registered as
a bank holding company under the Bank Holding Company Act of
1956, as amended;
(ii) all the outstanding shares of the capital stock of Fleet
Bank - RI and any such other Subsidiaries have been duly and
validly authorized and issued and are fully paid and (except as
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provided in 12 U.S.C. Sec. 55 in the case of the Bank)
nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of Fleet Bank -
RI and such other Subsidiaries are owned by the Company, free
and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities and any Depositary
Receipts conform to the description thereof contained in the
Final Prospectus; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; and, if the Securities or related Depositary
Shares, if any, are to be listed on any stock exchange,
authorization therefor has been given, subject to official notice
of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all
required supporting documents with respect to the Securities or
such Depositary Shares, if any, with such stock exchange and such
counsel has no reason to believe that the Securities or such
Depositary Shares, if any, will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is
not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, which is not described or filed as
required;
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(v) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b), or if
the Rule 434 Delivery Alternative was used, the required filing
of the Rule 434 Term Sheet has been made in the manner and time
period required by Rule 434; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to
believe that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
at the Closing Date the Final Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vi) this Agreement, any Deposit Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and
delivered by the Company and, if any Depositary is also a
Subsidiary, by such Depositary;
(vii) no consent, approval, authorization or order of any
court or governmental agency or body in required for the
consummation of the transactions contemplated herein or in any
Deposit Agreement or Delayed Delivery Contracts, except such as
have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with
the purchase and
17
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Deposit
Agreement or Delayed Delivery Contracts will conflict with,
result in a breach of, or constitute a default under the charter
or by-laws of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound, or any
order or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(ix) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Rhode Island or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Representatives shall have received from Cravath,
Swaine & ▇▇▇▇▇, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, any Deposit Agreement or Delayed Delivery
Contracts, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such
18
documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the
President or any Executive Vice President and the principal financial
or accounting officer or treasurer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, KPMG Peat Marwick LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of
19
the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated condensed financial statements made available by the
Company and its subsidiaries; carrying out certain specified
procedures (but not an audit in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive and audit committees of
the Company; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing
came to their attention which caused them to believe that:
(1) the amounts in the unaudited "Summary Consolidated
Financial Data", if any, included in the Final Prospectus do
not agree with the corresponding amounts in the audited
consolidated condensed financial statements or analyses
prepared by the Company from which such amounts were
derived; or
(2) any unaudited consolidated financial statements
included or incorporated in the Registration Statement and
the Final Prospectus do not comply in form in all material
respects with applicable accounting requirements and with
the published rules and
20
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited
consolidated condensed financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus;
(3) with respect to the period subsequent to the date
of the most recent consolidated financial statements (other
than any capsule information), audited or unaudited, in or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the
letter, in the long-term debt of the Company or capital
stock of the Company or decreases in the stockholders'
equity of the Company as compared with the amounts shown on
the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most
recent consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding
year, in consolidated net interest income, consolidated net
interest income after provision for possible loan losses,
consolidated income before income taxes or in total or per
share amounts of consolidated net income of the Company,
except in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; or
21
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
amounts set forth in the unaudited financial statements for
the same periods or were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information set forth under the captions "Fleet
Financial Group, Inc.", "Recent Developments" and "Consolidated
Ratios of Earnings to Combined Fixed Charges and Preferred Stock
Dividends" in the Final Prospectus, the information included or
incorporated in Items 1, 6 and 7 of the Company's Annual Report
on Form 10-K incorporated in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement
and the Final Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been
(i) any
22
change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the judgment
of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been
any decrease in the ratings of any of the Company's debt or equity
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such
rating.
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents (including an opinion of counsel for the Company with
respect to the foreign qualification of specified subsidiaries) as the
Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
(j) Any Deposit Agreement shall have been duly executed by the
Company and the Depositary.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation
23
shall be given to the Company in writing or by telephone or telegraph
confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all out-
of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the
Securities and any related Depositary Shares as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
-------- -------
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the
24
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities or any related Depositary Shares which are the
subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the
sale of such Securities or Depositary Shares, if any, to such person in any
case where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final Prospectus (or the
Final Prospectus as supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page, under the heading "Underwriting" or "Plan of Distribution" and,
if Schedule I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party
25
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to appoint counsel satisfactory to such indemnified party to represent the
indemnified party in such action; provided, however, that if the defendants
-------- -------
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to appoint counsel to
defend such action and approval by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party under
this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (plus any local counsel),
approved by the Representatives in the case of paragraph (a) of this
Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 7 is due in accordance with its terms but is for any reason
held by a
26
court to be unavailable from the Company on grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the
sum of such discount and the purchase price of the Securities specified in
Schedule I hereto and the Company is responsible for the balance; provided,
--------
however, that (y) in no case shall any Underwriter (except as may be
-------
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person who controls an Underwriter
within the meaning of the Act shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to clauses (y) and (z) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may
be sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
--------------------------
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set
27
forth opposite their names in Schedule II hereto bears to the aggregate
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
-------- -------
event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination
------------
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York, Rhode Island, Connecticut, Maine, New Hampshire or
Massachusetts state authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of
a national emergency or war or other calamity or crisis the effect of which
on financial markets is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
28
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
--------
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Senior Vice President and
General Counsel.
12. Successors. This Agreement will inure to the benefit of and
-----------
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
---------------
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and
29
your acceptance shall represent a binding agreement among the Company and
the several Underwriters.
Very truly yours,
FLEET FINANCIAL
GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Title: Treasurer
CONFIRMED AND ACCEPTED
as of the date first above written:
SALOMON BROTHERS INC
By /s/ ▇▇▇▇▇ ▇. Head
----------------------------
Authorized Signatory
SCHEDULE I
Underwriting Agreement dated March 26, 1996
Registration Statement No. 333-00701
Representative(s): Salomon Brothers Inc
Designation, Purchase Price and Description of Securities:
Designation: Depositary Shares, each representing a
one-fifth interest in a share of
Series VII Fixed/Adjustable Rate Cumulative Preferred
Stock
Liquidation preference per share of Series VII Fixed/Adjustable Rate
Cumulative Preferred Stock: $250
Number of shares: 3,500,000 Depositary Shares
700,000 Shares of Series VII Fixed/Adjustable
Rate Cumulative Preferred Stock
Purchase price per Depositary Share (include accrued dividends, if
any): $49.00
Type of Funds: Same-day
Over-allotment option: 525,000 Depositary Shares
105,000 Shares of Series VII Fixed/Adjustable
Rate Cumulative Preferred Stock
Depositary Receipt Arrangements: Yes [ X ] No [ ]
Name of Depositary: Fleet National Bank (Fleet-RI)
Date of Deposit Agreement: April 1, 1996
Fraction of a Security equal to one Depositary Share:
One-fifth
Closing Date, Time and Location:
Date: April 1, 1996
Time: 10:00 a.m., New York City time
Location: Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee: N/A
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all contracts: N/A
Date referred to in Section 4(f) after which the Company may offer or sell
debt securities issued or guaranteed by the Company, shares of any class
of preferred stock of the Company or other securities of the Company
underlying any convertible securities:
a) March 26, 1996 as to debt securities issued or guaranteed by
the Company for sale to retail investors and April 8, 1996 as to debt
securities issued or guaranteed by the Company for sale to institutional
investors, and
b) May 1, 1996 as to preferred stock, whether or not represented by
depositary shares, with similar terms to those offered hereby.
Modification of items to be covered by the letter from KPMG Peat Marwick
delivered pursuant to Section 5(e) at the Execution Time: None
SCHEDULE II
Number of shares
of Securities to
Underwriter Be purchased
------------ -----------------
Salomon Brothers Inc 3,500,000
---------
Total . . . . . . . . . . . . . . . . . . 3,500,000
=========
CERTIFICATE OF THE VOTING POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
ARTICLES OF INCORPORATION OR IN ANY AMENDMENT THERETO OF THE
SERIES VII FIXED/ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK
OF
FLEET FINANCIAL GROUP, INC.
-------------------
PURSUANT TO SECTION 7-1.1-15 OF THE
RHODE ISLAND BUSINESS CORPORATION ACT
-------------------
We, the undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, the Senior
Vice President and the Assistant Secretary, respectively, of FLEET FINANCIAL
GROUP, INC., a Rhode Island corporation (hereinafter called the "Corporation"),
DO HEREBY CERTIFY that the following resolution was duly adopted by the Board of
Directors of the Corporation at a meeting duly convened and held on March 28,
1996, at which a quorum was present and acting throughout.
"RESOLVED, that pursuant to authority conferred upon the Board of Directors
(the "Board") of Fleet Financial Group, Inc., a Rhode Island corporation (the
"Corporation"), by the Restated Articles of Incorporation, as amended (the
"Articles of Incorporation"), of the Corporation, the Board hereby creates a
series of Preferred Stock of the Corporation to consist of 805,000 shares, and
hereby fixes the voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such series (in addition
to the designations, preferences and relative, participating, option or other
special rights, and the qualifications, limitations or restrictions thereof, set
forth in the Articles of Incorporation which are applicable to the Preferred
Stock of all classes or series) as follows:
(a) Designation. The designation of the series of Preferred Stock shall be
"Series VII Fixed/Adjustable Rate Cumulative Preferred Stock" (hereinafter
called this "Series") and the number of shares constituting this Series is Eight
Hundred Five Thousand (805,000).
(b) Dividend Rate.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 6.60% per annum computed on the basis of an
issue price thereof of $250 per share, and no more, payable quarterly out of
the funds of the Corporation legally available for the payment of dividends.
Such dividends shall be cumulative from the date of original issue of such
shares and shall be payable, when, as and if declared by the Board, on
January 1, April 1, July 1 and October 1 of each year, commencing July 1,
1996 (a "Dividend Payment Date") through April 1, 2006. Each such dividend
shall be paid to the holders of record of shares of this Series as they
appear on the stock register of the Corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be fixed by
the Board. Dividends on account of arrears for any past quarters may be
declared and paid at any time, without reference to any regular dividend
payment date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board.
After April 1, 2006, dividends on this Series will be payable quarterly,
as, if and when declared by the Board of Directors or a duly authorized
committee thereof on each Dividend Payment Date at the Applicable Rate from
time to time in effect. The Applicable Rate per annum for any dividend
period beginning on or after April 1, 2006 will be equal to .50% plus the
highest of the Treasury ▇▇▇▇ Rate, the Ten Year Constant Maturity Rate and
the Thirty Year Constant
Maturity Rate (each as defined below under "Adjustable Rate Dividends"), as
determined in advance of such dividend period. The Applicable Rate per annum
for any dividend period beginning on or after April 1, 2006 will not be less
than 7.0% nor greater than 13.0% (without taking into account any
adjustments as described below in subsection (3) of this Section (b)).
(2) Except as provided below in this paragraph, the "Applicable Rate"
per annum for any dividend period beginning on or after April 1, 2006 will
be equal to .50% plus the Effective Rate (as defined below), but not less
than 7.0% nor greater than 13.0% (without taking into account any
adjustments as described below in subsection (3) of this Section (b)). The
"Effective Rate" for any dividend period beginning on or after April 1, 2006
will be equal to the highest of the Treasury ▇▇▇▇ Rate, the Ten Year
Constant Maturity Rate and the Thirty Year Constant Maturity Rate (each as
defined below) for such dividend period. In the event that the Corporation
determines in good faith that for any reason:
(i) any one of the Treasury ▇▇▇▇ Rate, the Ten Year Constant Maturity
Rate or the Thirty Year Constant Maturity Rate cannot be determined for
any dividend period, then the Effective Rate for such dividend period
will be equal to the higher of whichever two of such rates can be so
determined;
(ii) only one of the Treasury ▇▇▇▇ Rate, the Ten Year Constant
Maturity Rate or the Thirty Year Constant Maturity Rate can be determined
for any dividend period, then the Effective Rate for such dividend period
will be equal to whichever such rate can be so determined; or
(iii) none of the Treasury ▇▇▇▇ Rate, the Ten Year Constant Maturity
Rate or the Thirty Year Constant Maturity Rate can be determined for any
dividend period, then the Effective Rate for the preceding dividend
period will be continued for such dividend period.
Except as described below in this paragraph, the "Treasury ▇▇▇▇ Rate"
for each dividend period will be the arithmetic average of the two most
recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate is published during the relevant
Calendar Period (as defined below)) for three-month U.S. Treasury bills, as
published weekly by the Federal Reserve Board (as defined below) during the
Calendar Period immediately preceding the last ten calendar days preceding
the dividend period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum market discount rate during any such Calendar
Period, then the Treasury ▇▇▇▇ Rate for such dividend period will be the
arithmetic average of the two most recent weekly per annum market discount
rates (or the one weekly per annum market discount rate, if only one such
rate is published during the relevant Calendar Period) for three-month U.S.
Treasury bills, as published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government department or agency selected
by the Corporation. In the event that a per annum market discount rate for
three-month U.S. Treasury bills is not published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Treasury ▇▇▇▇ Rate for such
dividend period will be the arithmetic average of the two most recent weekly
per annum market discount rates (or the one weekly per annum market discount
rate, if only one such rate is published during the relevant Calendar
Period) for all of the U.S. Treasury bills then having remaining maturities
of not less than 80 nor more than 100 days, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve
Board does not publish such rates, by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Corporation. In the
event that the Corporation determines in good faith that for any reason no
such U.S. Treasury ▇▇▇▇ Rates are published as provided above during such
Calendar Period, then the Treasury ▇▇▇▇ Rate for such dividend period will
be the arithmetic average of the per annum market discount rates based upon
2
the closing bids during such Calendar Period for each of the issues of
marketable non-interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days from the date of each
such quotation, as chosen and quoted daily for each business day in New York
City (or less frequently if daily quotations are not generally available) to
the Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation. In the event that the Corporation
determines in good faith that for any reason the Corporation cannot
determine the Treasury ▇▇▇▇ Rate for any dividend period as provided above
in this paragraph, the Treasury ▇▇▇▇ Rate for such dividend period will be
the arithmetic average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of
marketable interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days, as chosen and quoted
daily for each business day in New York City (or less frequently if daily
quotations are not generally available) to the Corporation by at least three
recognized dealers in U.S. Government securities selected by the
Corporation.
Except as described below in this paragraph, the "Ten Year Constant
Maturity Rate" for each dividend period will be the arithmetic average of
the two most recent weekly per annum Ten Year Average Yields (as defined
below) (or the one weekly per annum Ten Year Average Yield, if only one such
yield is published during the relevant Calendar Period), as published weekly
by the Federal Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the dividend period for which
the dividend rate on this Series is being determined. In the event that the
Federal Reserve Board does not publish such a weekly per annum Ten Year
Average Yield during such Calendar Period, then the Ten Year Constant
Maturity Rate for such dividend period will be the arithmetic average of the
two most recent weekly per annum Ten Year Average Yields (or the one weekly
per annum Ten Year Average Yield, if only such yield is published during the
relevant Calendar Period), as published weekly during such Calendar Period
by any Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that a per annum Ten Year Average
Yield is not published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such dividend
period will be the arithmetic average of the two most recent weekly per
annum average yields to maturity (or the one weekly per annum average yield
to maturity, if only one such yield is published during the relevant
Calendar Period) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities (as defined
below)) then having remaining maturities of not less than eight nor more
than twelve years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board does not publish such yields,
by any Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that the Corporation determines in
good faith that for any reason the Corporation cannot determine the Ten Year
Constant Maturity Rate for any dividend period as provided above in this
paragraph, then the Ten Year Constant Maturity Rate for such dividend period
will be the arithmetic average of the per annum average yields to maturity
based upon the closing bids during such Calendar Period for each of the
issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not
less than eight nor more than twelve years from the date of each such
quotation, as chosen and quoted daily for each business day in New York City
(or less frequently if daily quotations are not generally available) to the
Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation.
Except as described below in this paragraph, the "Thirty Year Constant
Maturity Rate" for each dividend period will be the arithmetic average of
the two most recent weekly per annum Thirty Year Average Yields (as defined
below) (or the one weekly per annum Thirty Year Yield, if only one such
yield is published during the relevant Calendar Period), as published weekly
by the
3
Federal Reserve Board during the Calendar Period immediately preceding the
last ten calendar days preceding the dividend period for which the dividend
rate on this Series is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Thirty Year Average
Yield during such Calendar Period, then the Thirty Year Constant Maturity
Rate for such dividend period will be the arithmetic average of the two most
recent weekly per annum Thirty Year Average Yields (or the one weekly per
annum Thirty Year Average Yield, if only one such yield is published during
the relevant Calendar Period), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that a per annum Thirty
Year Average Yield is not published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government department or agency during
such Calendar Period, then the Thirty Year Constant Maturity Rate for such
dividend period will be the arithmetic average of the two most recent weekly
per annum average yields to maturity (or the one weekly per annum average
yield to maturity, if only one such yield is published during the relevant
Calendar Period) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) then having
remaining maturities of not less than twenty-eight nor more than thirty
years, as published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board does not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or agency selected
by the Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the Thirty Year
Constant Maturity Rate for any dividend period as provided above in this
paragraph, then the Thirty Year Constant Maturity Rate for such dividend
period will be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not
less than twenty-eight nor more than thirty years from the date of such
quotation, as chosen and quoted daily for each business day in New York City
(or less frequently if daily quotations are not generally available) to the
Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation.
The Treasury ▇▇▇▇ Rate, the Ten Year Constant Maturity Rate and the
Thirty Year Constant Maturity Rate will each be rounded to the nearest five
hundredths of a percent.
The Applicable Rate with respect to each dividend period beginning on or
after April 1, 2006 will be calculated as promptly as practicable by the
Corporation according to the appropriate method described above. The
Corporation will cause notice of each Applicable Rate to be enclosed with
the dividend payment checks next mailed to the holders of this Series.
As used above, the term "Calendar Period" means a period of fourteen
calendar days; the term "Federal Reserve Board" means the Board of Governors
of the Federal Reserve System; the term "Special Securities" means
securities which can, at the option of the holder, be surrendered at face
value in payment of any Federal estate tax or which provide tax benefits to
the holder and are priced to reflect such tax benefits or which were
originally issued at a deep or substantial discount; the term "Ten Year
Average Yield" means the average yield to maturity for actively traded
marketable U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of ten years); and the term "Thirty Year Average Yield"
means the average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant maturities of
thirty years.)
(3) If one or more amendments to the Internal Revenue Code of 1986, as
amended (the "Code"), are enacted that change the percentage of the
dividends received deduction (currently 70%) as specified in Section
243(a)(1) of the Code or any successor provision (the "Dividends Received
Percentage"), the amount of each dividend payable per share of this Series
for dividend payments made on or after the date of enactment of such change
shall be adjusted by multiplying
4
the amount of the dividend payable determined as described above (before
adjustment) by a factor which shall be the number determined in accordance
with the following formula (the "DRD Formula"), and rounding the result to
the nearest cent:
1-.35 (1-.70)
-------------
1-.35 (1-DRP)
For the purposes of the DRD Formula, "DRP" means the Dividends Received
Percentage applicable to the dividend in question. No amendment to the Code,
other than a change in the percentage of the dividends received deduction
set forth in Section 243(a)(1) of the Code or any successor provision, will
give rise to an adjustment. Notwithstanding the foregoing provisions, in the
event that, with respect to any such amendment, the Corporation shall
receive either an unqualified opinion of independent recognized tax counsel
or a private letter ruling or similar form of authorization from the
Internal Revenue Service to the effect that such an amendment would not
apply to dividends payable on shares of this Series, then any such amendment
shall not result in the adjustment provided for pursuant to the DRD Formula.
The Corporation's calculation of the dividends payable as so adjusted and as
certified accurate as to calculation and reasonable as to method by the
independent certified public accountants then regularly engaged by the
Corporation shall be final and not subject to review.
If any amendment to the Code which reduces the Dividends Received
Percentage is enacted after a dividend payable on a Dividend Payment Date
has been declared, the amount of dividend payable on such Dividend Payment
Date will not be increased; but instead, an amount, equal to the excess of
(x) the product of the dividends paid by the Corporation on such Dividend
Payment Date and the DRD Formula (where the DRP used in the DRD Formula
would be equal to the reduced Dividends Received Percentage) and (y) the
dividends paid by the Corporation on such Dividend Payment Date, will be
payable to holders of record on the next succeeding Dividend Payment Date in
addition to any other amounts payable on such date.
In addition, if prior to October 2, 1996, an amendment to the Code is
enacted that reduces the Dividends Received Percentage and such reduction
retroactively applies to a Dividend Payment Date as to which the Corporation
previously paid dividends on shares of this Series (each an "Affected
Dividend Payment Date"), the Corporation will pay (if declared) additional
dividends (the "Additional Dividends") on the next succeeding Dividend
Payment Date (or if such amendment is enacted after the dividend payable on
such Dividend Payment Date has been declared, on the second succeeding
Dividend Payment Date following the date of enactment) to holders of record
on such succeeding Dividend Payment Date in an amount equal to the excess of
(x) the product of the dividends paid by the Corporation on each Affected
Dividend Payment Date and the DRD Formula (where the DRP used in the DRD
Formula would be equal to the Dividends Received Percentage applied to each
Affected Dividend Payment Date) and (y) the dividends paid by the
Corporation on each Affected Dividend Payment Date.
Additional Dividends will not be paid in respect of the enactment of any
amendment to the Code on or after October 2, 1996 which retroactively
reduces the Dividends Received Percentage, or if prior to October 2, 1996,
such amendment would not result in an adjustment due to the Corporation
having received either an opinion of counsel or tax ruling referred to in
the third preceding paragraph. The Corporation will only make one payment of
Additional Dividends.
In the event that the amount of dividend payable per share of this
Series shall be adjusted pursuant to the DRD Formula and/or Additional
Dividends are to be paid, the Corporation will cause notice of each such
adjustment and, if applicable, any Additional Dividends, to be sent to each
holder of record of the shares of this Series at such holder's address as
the same appears on the stock register of the Corporation.
5
(4) No full dividends shall be declared or paid or set apart for payment
on the Preferred Stock of any series ranking, as to dividends, on a parity
with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
preferred stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other class or series
of preferred stock of the Corporation ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of dividends
declared per share on this Series and such other preferred stock shall in
all cases bear to each other the same ratio that accrued dividends per share
on the shares of this Series and such other preferred stock bear to each
other. Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on this Series which may be in arrears.
(5) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in subsection (4) of this Section (b)) shall be declared or paid or
set aside for payment or other distribution declared or made upon the Common
Stock or upon any other stock ranking junior to or on a parity with this
Series as to dividends or upon liquidation, nor shall any Common Stock nor
any other stock of the Corporation ranking junior to or on a parity with
this Series as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such
stock) by the Corporation (except by conversion into or exchange for stock
of the Corporation ranking junior to this Series as to dividends and upon
liquidation) unless, in each case, the full cumulative dividends on all
outstanding shares of this Series shall have been paid for all past dividend
payment periods.
(6) Dividends payable on this Series for any period, including the
period from the original issue of such shares until July 1, 1996, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
(c) Redemption.
(1) (A) The shares of this Series shall not be redeemable prior to April
1, 2006. On and after April 1, 2006, the Corporation, at its option, may
redeem shares of this Series, in whole or in part, at any time or from time
to time, at a redemption price of $250 per share, plus accrued and unpaid
dividends thereon to the date fixed for redemption.
(B) In the event that fewer than all the outstanding shares of this
Series are to be redeemed pursuant to subsection (1)(A), the number of
shares to be redeemed shall be determined by the Board and the shares to be
redeemed shall be determined by lot or pro rata as may be determined by the
Board or by any other method as may be determined by the Board in its sole
discretion to be equitable.
(2) (A) Notwithstanding subsection (1) above, if the Dividends Received
Percentage is equal to or less than 40% and, as a result, the amount of
dividends on the shares of this Series payable on any Dividend Payment Date
will be or is adjusted upwards as described in Section (b)(2) above, the
Corporation, at its option, may redeem all, but not less than all, of the
outstanding shares of this Series; provided, that within sixty days of the
date on which an amendment to the Code is enacted which reduces the
Dividends Received Percentage to 40% or less, the Corporation sends notice
to holders of shares of this Series of such redemption in accordance with
subsection (3) below.
6
(B) Any redemption of this Series in accordance with this subsection (2)
shall be at the applicable redemption price set forth in the following
table, in each case plus accrued and unpaid dividends (whether or not
declared) thereon to the date fixed for redemption, including any changes in
dividends payable due to changes in the Dividends Received Percentage and
Additional Dividends, if any.
REDEMPTION PERIOD REDEMPTION PRICE
----------------- ----------------
April 1, 1996 to March 31, 1997............................. $ 262.50
April 1, 1997 to March 31, 1998............................. 261.25
April 1, 1998 to March 31, 1999............................. 260.00
April 1, 1999 to March 31, 2000............................. 258.75
April 1, 2000 to March 31, 2001............................. 257.50
April 1, 2001 to March 31, 2002............................. 256.25
April 1, 2002 to March 31, 2003............................. 255.00
April 1, 2003 to March 31, 2004............................. 253.75
April 1, 2004 to March 31, 2005............................. 252.50
April 1, 2005 to March 31, 2006............................. 251.25
On or after April 1, 2006................................... 250.00
(3) In the event the Corporation shall redeem shares of this Series
pursuant to subsections (1) or (2) above, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the redemption date, to each holder of record of the
shares to be redeemed, at such holder's address as the same appears on the
stock register of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be redeemed
and, if fewer than all the shares held by such holder are to be redeemed,
the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of this Series so called for redemption under either subsection (1)
or (2) above shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance
with said notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board shall so require and the
notice shall so state), such shares shall be redeemed by the Corporation at
the applicable redemption price. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder
thereof.
(5) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of this Series.
(d) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the shares of this Series shall be entitled to receive and be
paid out of the assets of the Corporation available for distribution to its
stockholders, before any payment or distribution shall be made on
7
the Common Stock or on any other class of stock ranking junior to the shares
of this Series upon liquidation, the amount of $250 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or
business of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the Corporation, shall
be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purposes of this Section (d).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (d), the holders of
this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
(4) In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any dissolution,
liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (1) of this Section (d), no such
distribution shall be made on account of any shares of any other class or
series of Preferred Stock ranking on a parity with the shares of this Series
upon such dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the shares of this Series,
ratably, in proportion to the full distributable amounts for which holders
of all such parity shares are respectively entitled upon such dissolution,
liquidation or winding up.
(e) Conversion or Exchange. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares for
shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
(f) Voting. The shares of this Series shall not have any voting powers,
either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66 2/3% of all of the shares of this Series at the time outstanding, given
in person or by proxy, either in writing or by a vote at a meeting called
for the purpose at which the holders of shares of this Series shall vote
together as a separate class, shall be necessary for authorizing, effecting
or validating the amendment, alteration or repeal of any of the provisions
of the Articles of Incorporation or of any certificate amendatory thereof or
supplemental thereto (including any Certificate of the Voting Powers,
Designations, Preferences and Relative, Participating, Optional or Other
Special Rights, and the Qualifications, Limitations or Restrictions thereof,
or any similar document relating to any series of Preferred Stock) which
would adversely affect the preferences, rights, powers or privileges of this
Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66 2/3% of all of the shares of this Series and all other series of
Preferred Stock ranking on a parity with shares of this Series, either as to
dividends or upon liquidation, at the time outstanding, given in person or
by proxy, either in writing or by a vote at a meeting called for the purpose
at which the holders of shares of this Series and such other series of
Preferred Stock shall vote together as a single class without regard to
series, shall be necessary for authorizing, effecting, increasing or
validating the creation, authorization or issue of any shares of any class
of stock of the Corporation ranking prior to the shares of this Series as to
dividends or upon liquidation, or the reclassification of any authorized
stock of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares.
8
(3) If, at the time of any annual meeting of stockholders for the
election of directors, a default in preference dividends on any series of
the Preferred Stock or any other class or series of preferred stock of the
Corporation (other than any other class or series of the Corporation's
preferred stock expressly entitled to elect additional directors to the
Board by a vote separate and distinct from the vote provided for in this
paragraph (3) ("Voting Preferred")) shall exist, the number of directors
constituting the Board shall be increased by two (without duplication of any
increase made pursuant to the terms of any other class or series of the
Corporation's preferred stock other than any Voting Preferred) and the
holders of the Corporation's preferred stock of all classes and series
(other than any such Voting Preferred) shall have the right at such meeting,
voting together as a single class without regard to class or series, to the
exclusion of the holders of Common Stock and the Voting Preferred, to elect
two directors of the Corporation to fill such newly created directorships.
Such right shall continue until there are no dividends in arrears upon
shares of any class or series of the Corporation's preferred stock ranking
prior to or on a parity with shares of this Series as to dividends (other
than any Voting Preferred). Each director elected by the holders of shares
of any series of the Preferred Stock or any other class or series of the
Corporation's preferred stock in an election provided for by this paragraph
(3) (herein called a "Preferred Director") shall continue to serve as such
director for the full term for which he shall have been elected,
notwithstanding that prior to the end of such term a default in preference
dividends shall cease to exist. Any Preferred Director may be removed by,
and shall not be removed except by, the vote of the holders of record of the
outstanding shares of the Corporation's preferred stock entitled to have
originally voted for such director's election, voting together as a single
class without regard to class or series, at a meeting of the stockholders,
or of the holders of shares of the Corporation's preferred stock, called for
that purpose. So long as a default in any preference dividends on any series
of the Preferred Stock or any other class or series of preferred stock of
the Corporation shall exist (other than any Voting Preferred) (A) any
vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (B)) by an instrument in writing signed by
the remaining Preferred Director and filed with the Corporation and (B) in
the case of the removal of any Preferred Director, the vacancy may be filled
by the vote of the holders of the outstanding shares of the Corporation's
preferred stock entitled to have originally voted for the removed director's
election, voting together as a single class without regard to class or
series, at the same meeting at which such removal shall be voted. Each
director appointed as aforesaid shall be deemed for all purposes hereto to
be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a
default in preference dividends shall no longer exist, the number of direc
tors constituting the Board shall be reduced by two. For purposes hereof, a
"default in preference dividends" on any series of the Preferred Stock or
any other class or series of preferred stock of the Corporation shall be
deemed to have occurred whenever the amount of accrued dividends upon such
class or series of the Corporation's preferred stock shall be equivalent to
six full quarterly dividends or more, and, having so occurred, such default
shall be deemed to exist thereafter until, but only until, all accrued
dividends on all such shares of the Corporation's preferred stock of each
and every series then outstanding (other than any Voting Preferred or shares
of any class or series ranking junior to shares of this Series as to
dividends) shall have been paid to the end of the last preceding quarterly
dividend period.
(g) Reacquired Shares. Shares of this Series which have been issued and
reacquired through redemption or purchase shall, upon compliance with an
applicable provision of the Rhode Island Business Corporation Act, have the
status of authorized and unissued shares of Preferred Stock and may be reissued
but only as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board.
(h) Relation to Existing Preferred Classes of Stock. Shares of this Series
are equal in rank and preference with all other series of the Preferred Stock
outstanding on the date of original issue of the
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shares of this Series and are senior in rank and preference to the Common Stock
and the Cumulative Participating Junior Preferred Stock of the Corporation.
(i) Relation to Other Preferred Classes of Stock. For purposes of this
resolution, any stock of any class or classes of the Corporation shall be deemed
to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to
the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of this Series;
(2) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or sinking fund provisions, if
any, be different from those of this Series, if the holders of such stock
shall be entitled to the receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the Corporation, as the case
may be, in proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as between the
holders of such stock and the holders of shares of this Series; and
(3) junior to the shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares
of this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the holders of
shares of such class or classes.
IN WITNESS WHEREOF, this Certificate has been made under the seal of Fleet
Financial Group, Inc., and has been signed by the undersigned, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, its Senior Vice President, and ▇▇▇▇ ▇. ▇▇▇▇▇▇, its Assistant
Secretary, respectively, this 28th day of March, 1996.
FLEET FINANCIAL GROUP, INC.
[SEAL]
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
...................................
(Senior Vice President)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
...................................
(Assistant Secretary)
STATE OF MASSACHUSETTS
COUNTY OF SUFFOLK
In said County and State on this 28th day of March, 1996, personally
appeared before me ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, the Senior
Vice President and Assistant Secretary, respectively, of Fleet Financial
Group, Inc., to me known and known by me to be the parties executing the
foregoing instrument, and they acknowledged said instrument by them executed
to be their free act and deed and the free act and deed of said Fleet Financial
Group, Inc.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
...................................
Notary Public
My Commission Expires: 1/31/2003
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