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EXHIBIT 4.3
DRAFT 10/14/96
DEPOSIT AGREEMENT
Dated: As of October _____, 1996
BY AND BETWEEN
INDEPENDENT BANK CORPORATION
-AND-
STATE STREET BANK AND TRUST COMPANY,
AS DEPOSITARY
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TABLE OF CONTENTS
PAGE
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ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - FORM OF RECEIPTS, DEPOSITS OF PREFERRED STOCK,
SERIES A, EXECUTION AND DELIVERY, TRANSFER
SURRENDER AND REDEMPTION OF RECEIPTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.01 - Form and Transferability of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.02 - Deposit of Series A Preferred Stock-Execution and
Delivery of Receipts in Respect Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.03 - Optional Redemption of Series A Preferred Stock for cash . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.04 - Registration of Transfers of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.05 - Combinations and Split-ups of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.06 - Surrender of Receipts and withdrawal of Series A
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.07 - Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.08 - Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.09 - Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.10 - Conversion of Series A Preferred Stock into Common Stock . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III - CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.01 - Filing Proofs, Certificates and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.02 - Payment of Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.03 - Representations and Warranties as to Series A Preferred Stock . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.04 - Representation and Warranty as to Receipts and Depositary
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV - THE SERIES A PREFERRED STOCK; NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.01 - Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.02 - Distributions Other Than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.03 - Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.04 - Notice of Dividends; Fixing of Record Date for
Holders of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.05 - Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00
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XXXXXXX 0.00 - Xxxxxxx Affecting Series A Preferred Stock, and
Reclassifications, Recapitalization, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.07 - Inspection of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.08 - Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.09 - Tax and Regulatory Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.10 - Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V - THE DEPOSITARY AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.01 - Maintenance of Offices, Agencies and Transfer Books
by the Depositary and the Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.02 - Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.03 - Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.04 - Resignation and Removal of the Depositary; Appointment
of Successor Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.05 - Notices, Reports and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.06 - Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.07 - Fees, Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI - AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.01 - Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.02 - Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.01 - Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.02 - Exclusive Benefits of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.03 - Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.04 - Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.05 - Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.06 - Holders of Receipts are Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.07 - Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.08 - Inspection of Deposit Agreement and Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.09 - Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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DRAFT 10/14/96
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of October _____, 1996 among INDEPENDENT
BANK CORPORATION, a Michigan corporation, STATE STREET BANK AND TRUST COMPANY,
as Depositary, and all holders from time to time of Receipts (as hereinafter
defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of the Company's Series A
Preferred Stock (as hereinafter defined) with the Depositary for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of the
Receipts evidencing Depositary Shares representing a fractional interest in the
Series A Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it
is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
SECTION 1.01. "ARTICLES" shall mean the Articles of Incorporation
(including any Designation), as amended from time to time, of the Company.
SECTION 1.02. "COMMON STOCK" shall mean the common stock, par value
$1.00 per share, of the Company.
SECTION 1.03. "COMPANY" shall mean Independent Bank Corporation, a
Michigan corporation, and its successors.
SECTION 1.04. "CORPORATE OFFICE" shall mean the corporate office of
the Depositary at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at _________
_______________________________________________________________________________.
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SECTION 1.05. "DEPOSIT AGREEMENT" shall mean this agreement, as the
same may be amended, modified or supplemented from time to time.
SECTION 1.06. "DEPOSITARY" shall mean State Street Bank and Trust
Company, having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000, and any successor as depositary
hereunder.
SECTION 1.07. "DEPOSITARY SHARE" shall mean a fractional interest
of one-fourth (1/4) of a share of Series A Preferred Stock deposited with the
Depositary hereunder and the same proportionate interest in any and all other
property received by the Depositary in respect of such share of Series A
Preferred Stock and held under this Deposit Agreement, all as evidenced by the
Receipts issued hereunder. Subject to the terms of this Deposit Agreement,
each owner of a Depositary Share is entitled, proportionately, to all the
rights, preferences and privileges of the Series A Preferred Stock represented
by such Depositary Share, including the dividend, voting, redemption,
conversion and liquidation rights contained in the Designation.
SECTION 1.08. "DEPOSITARY'S AGENT" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in Section 7.05.
SECTION 1.09 "DESIGNATION" shall mean the certificate of
designation filed with the Commerce Department of Michigan, establishing the
Series A Preferred Stock as a separate series of Preferred Stock of the
Company.
SECTION 1.10. "RECEIPT" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
SECTION 1.11. "RECORD DATE" shall mean the date fixed pursuant to
Section 4.04.
SECTION 1.12. "RECORD HOLDER" or "HOLDER" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the books
maintained by the Depositary for such purpose.
SECTION 1.13. "REGISTRAR" shall mean State Street Bank and Trust
Company or any bank or trust company appointed to register ownership and
transfers of Receipts or the deposited Series A Preferred Stock as herein
provided.
SECTION 1.14. "SECURITIES ACT" shall mean the Securities Act of
1933, as amended.
SECTION 1.15 "SERIES A PREFERRED STOCK" shall mean shares of the
Company's ______________% Cumulative, Convertible Series A Preferred
Stock, no par value per share, heretofore validly issued, fully paid and
nonassessable.
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SECTION 1.16. "TRANSFER AGENT" shall mean State Street Bank and
Trust Company or any bank or trust company appointed to transfer the Receipts
or the deposited Series A Preferred Stock as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SERIES A PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
REDEMPTION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFERABILITY OF RECEIPTS. Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which may be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the Corporate
Office or such other offices, if any, as the Depositary may designate, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Series A
Preferred Stock deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, provided
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as provided above
and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulation or with the
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rules and regulations of any securities exchange upon which the Series A
Preferred Stock, the Depositary Shares or the Receipts may be listed or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that until a Receipt shall be transferred on the books of the Depositary as
provided in Section 2.04, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder thereof at such time as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions, to the exercise of any conversion rights or
to any notice provided for in this Deposit Agreement and for all other
purposes.
SECTION 2.02. DEPOSIT OF SERIES A PREFERRED STOCK-EXECUTION AND
DELIVERY OF RECEIPTS IN RESPECT THEREOF. Concurrently with the execution of
this Deposit Agreement, the Company is delivering to the Depositary a
certificate or certificates, registered in the name of the Depositary and
evidencing [172,500] shares of Series A Preferred Stock, properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
(i) all such certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement and (ii) a written order of the
Company directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order a Receipt or Receipts for
the Depositary Shares representing such deposited Series A Preferred Stock.
The Depositary acknowledges receipt of the deposited Series A Preferred Stock
and related documentation and agrees to hold such deposited Series A Preferred
Stock in an account to be established by the Depositary at the Corporate Office
or at such other office as the Depositary shall determine. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Series A
Preferred Stock deposited hereunder and any Common Stock issued pursuant to
Section 2.10 and the Depositary hereby accepts such appointment and, as such,
will reflect changes in the number of shares (including any fractional shares)
of deposited Series A Preferred Stock held by it by notation, book-entry or
other appropriate method.
If required by the Depositary, Series A Preferred Stock presented for
deposit by the Company at any time, whether or not the register of stockholders
of the Company is closed, shall also be accompanied by an agreement or
assignment, or other instrument satisfactory to the Depositary, that will
provide for the prompt transfer to the Depositary or its nominee of any
dividend or right to subscribe for additional Series A Preferred Stock or to
receive other property that any person in whose name the Series A Preferred
Stock is or has been registered may thereafter receive upon or in respect of
such deposited Series A Preferred Stock, or in lieu thereof such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Series A Preferred Stock deposited hereunder, together with the other documents
specified above, and upon registering such Series A Preferred Stock in the name
of the Depositary, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver to, or upon the order of, the
person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.02, a Receipt or Receipts
for the number of whole Depositary Shares representing the Series A Preferred
Stock so deposited and registered in such name or names as may be requested by
such person
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or persons. The Depositary shall execute and deliver such Receipt or Receipts
at the Corporate Office, except that, at the request, risk and expense of any
person requesting such delivery, such delivery may be made at such other place
as may be designate d by such person. Other than in the case of splits,
combinations or other reclassifications affecting the Series A Preferred Stock,
or in the case of dividends or other distributions of Series A Preferred Stock,
if any, there shall be deposited hereunder not more than the number of shares
constituting the Series A Preferred Stock as set forth in the Designation, as
such may be amended.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Deposit Agreement.
SECTION 2.03. OPTIONAL REDEMPTION OF SERIES A PREFERRED STOCK FOR
CASH. Whenever the Company shall elect to redeem shares of deposited Series A
Preferred Stock for cash in accordance with the provisions of the Designation,
it shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 60 days' prior written notice of the date fixed for
redemption of such Series A Preferred Stock (the "cash redemption date") and of
the number of such shares of Series A Preferred Stock held by the Depositary to
be redeemed and the applicable redemption price, as set forth in the
Designation, including the amount, if any, of accrued and unpaid dividends to
the cash redemption date. The Depositary shall mail, first-class postage
prepaid, notice of the redemption of Series A Preferred Stock and the proposed
simultaneous redemption of the Depositary Shares representing the Series A
Preferred Stock to be redeemed, not less than 30 and not more than 60 days
prior to the cash redemption date, to the holders of record on the record date
fixed for such redemption pursuant to Section 4.04 hereof of the Receipts
evidencing the Depositary Shares to be so redeemed, at the addresses of such
holders as the same appear on the records of the Depositary; but neither
failure to mail any such notice to one or more such holders nor any defect in
any such notice shall affect the sufficiency of the proceedings for redemption
as to other holders. The Company shall provide the Depositary with such
notice, and each such notice shall state: (i) the date fixed for redemption;
(ii) the cash redemption price; (iii) that the holder has the right to convert
such Depositary Shares into Common Stock until the close of business on the
tenth day preceding the redemption date; (iv) the then-effective conversion
price and the place where Receipts may be surrendered for conversion, (v) the
number of shares of deposited Series A Preferred Stock and Depositary Shares to
be redeemed and if less than all the Depositary Shares held by any holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (vi) the place or places where Receipts evidencing Depositary
Shares to be redeemed are to be surrendered for payment of the cash redemption
price; and (vii) that from and after the cash redemption date dividends in
respect of the Series A Preferred Stock represented by the Depositary Shares to
be redeemed will cease to accrue. If fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed shall be
selected pro rata (as nearly as may be practicable without creating fractional
Depositary Shares) or by lot, or by such other method as determined by the
Company.
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In the event that notice of redemption has been made as described in
the immediately preceding paragraph and the Company shall then have paid in
full to the Depositary the cash redemption price (determined pursuant to the
Designation) of the Series A Preferred Stock deposited with the Depositary to
be redeemed (including any accrued and unpaid dividends to the cash redemption
date), the Depositary shall redeem the number of Depositary Shares representing
such Series A Preferred Stock so called for redemption by the Company and from
and after the cash redemption date (unless the Company shall have failed to
redeem the shares of Series A Preferred Stock to be redeemed by it as set forth
in the Company's notice provided for in the preceding paragraph), all dividends
in respect of the shares of Series A Preferred Stock called for redemption
shall cease to accrue, the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the cash
redemption price and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price of $25.00 per Depositary
Share plus any other money and other property payable in respect of such Series
A Preferred Stock. The foregoing shall be further subject to the terms and
conditions of the Designation.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
SECTION 2.04. REGISTRATION OF TRANSFERS OF RECEIPTS. The Company
hereby appoints the Depositary as the Registrar and Transfer Agent for the
Receipts and the Depositary hereby accepts such appointment and, as such, shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, together with evidence of the payment of any transfer taxes as
may be required by law. Upon such surrender, the Depositary shall execute a
new Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon surrender
of a Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.06. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SERIES A
PREFERRED STOCK. Any holder of a Receipt or Receipts may withdraw any or all
of the deposited Series A Preferred
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Stock represented by the Depositary Shares evidenced by such Receipt or
Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office or at such other office as the Depositary may designate for such
withdrawals, provided that a holder of a Receipt or Receipts may not withdraw
such Series A Preferred Stock (or money and other property, if any, represented
thereby) which has previously been called for redemption or which has been
converted to Common Stock in accordance with Section 2.10. After such
surrender, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, the number of whole shares of such Series A Preferred Stock and all
such money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal, but holders
of such whole shares of Series A Preferred Stock will not thereafter be
entitled to deposit such Series A Preferred Stock hereunder or to receive
Depositary Shares therefor. If the Receipt or Receipts delivered by the holder
to the Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of deposited Series A Preferred Stock to be withdrawn,
the Depositary shall at the same time, in addition to such number of whole
shares of Series A Preferred Stock and such money and other property, if any,
to be withdrawn, deliver to such holder, or (subject to Section 2.04) upon his
order, a new Receipt or Receipts evidencing such excess number of Depositary
Shares. Delivery of such Series A Preferred Stock and such money and other
property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate, which, if required by the Depositary, shall be properly endorsed
or accompanied by proper instruments of transfer. Partial shares of Series A
Preferred Stock will not be issued to holders of Depositary Shares.
If the deposited Series A Preferred Stock and the money and other
property being withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered for withdrawal
of Series A Preferred Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the Depositary may
require that the Receipt or Receipts surrendered by such holder for withdrawal
of such shares of Series A Preferred Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer or endorsement in
blank.
The Depositary shall deliver the deposited Series A Preferred Stock
and the money and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate Office,
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account, of the holder thereof, such delivery
may be made at such other place as may be designated by such holder.
SECTION 2.07. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SPLIT-UP, COMBINATION, SURRENDER AND EXCHANGE OF RECEIPTS. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) payment to
it of a sum sufficient for the payment (or, in the event that the Depositary or
the Company shall have made such payment, the reimbursement to it) of any tax
or other governmental charge with
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respect thereto (including any such tax or charge with respect to the Series A
Preferred Stock being deposited or withdrawn); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such regulations, if
any, as the Depositary or the Company may establish consistent with the
provisions of this Deposit Agreement as may be required by any securities
exchange upon which the deposited Series A Preferred Stock, the Depositary
Shares or the Receipts may be included for quotation or listed.
The deposit of Series A Preferred Stock may be refused, the delivery
of Receipts against Series A Preferred Stock may be suspended, the transfer of
Receipts may be refused, and the transfer, split-up, combination, surrender,
exchange or redemption of outstanding Receipts may be suspended (i) during any
period when the register of stockholders of the Company is closed or (ii) if
any such action is deemed reasonably necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement.
SECTION 2.08. LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, provided that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.09. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
SECTION 2.10. CONVERSION OF SERIES A PREFERRED STOCK INTO COMMON
STOCK. Any holder of a Receipt or Receipts may effect the conversion of any
whole number of Depositary Shares into shares of Common Stock by delivering the
Depositary Receipt or Receipts at the Corporate Office or at such other office
as the Depositary may designate for such conversions together with written
notice of the name an address in which the certificate for the shares of Common
Stock is to be issued, provided that a holder of a Receipt or Receipts may not
convert any Depositary Shares representing shares of Preferred Stock previously
called for redemption unless such conversion is effected prior to the close of
business on the tenth day preceeding the redemption date. After such delivery,
without unreasonable delay, the Depositary shall deliver to such holder the
number of whole shares of Common Stock into which the shares and/or fraction of
a share of Series A Preferred Stock represented by such Depositary Shares have
been converted pursuant to the conversion price and the conversion terms
specified in the Designation. No fractional shares of Common Stock will be
issued upon conversion, and if such conversion would result in a fractional
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share being issued, an amount will be paid in cash equal to the value of the
fractional interest based on the pricing mechanism for shares of Common Stock
specified in the Designation.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
person presenting Series A Preferred Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold or delay
the delivery of any Receipt, the transfer, redemption or exchange of any
Receipt, the withdrawal of the deposited Series A Preferred Stock represented
by the Depositary Shares evidenced by any Receipt, the distribution of any
dividend or other distribution or the sale of any rights or of the proceeds
thereof, until such proof or other information is filed, such certificates are
executed or such representations and warranties are made.
SECTION 3.02. PAYMENT OF FEES AND EXPENSES. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.07, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid.
Until such payment is made, transfer of any Receipt or any withdrawal of the
Series A Preferred Stock or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution may be withheld, and any part or all of the Series A
Preferred Stock or other property represented by the Depositary Shares
evidenced by such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder a reasonable number
of days prior to such sale). Any dividend or other distribution so withheld
and the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES AS TO SERIES A PREFERRED
STOCK. In the case of the initial deposit of the Series A Preferred Stock
hereunder, the Company and, in the case of subsequent deposits thereof, each
person so depositing Series A Preferred Stock under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Series A Preferred
Stock and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. The Company hereby further represents and
warrants that such Series A Preferred Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representations and warranties
shall survive the deposit of the Series A Preferred Stock and the issuance of
Receipts.
SECTION 3.04. REPRESENTATION AND WARRANTY AS TO RECEIPTS AND
DEPOSITARY SHARES. The Company hereby represents and warrants that the
Receipts, when issued, will evidence legal and valid interests in the
Depositary Shares and each Depositary Share will represent a legal and valid
one fourth (1/4) fractional interest in a share of deposited Series A Preferred
Stock. Such
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representation and warranty shall survive the deposit of the Series A Preferred
Stock and the issuance of Receipts evidencing the Depositary Shares.
ARTICLE IV
THE SERIES A PREFERRED STOCK; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution of the deposited Series A
Preferred Stock, including any cash received upon redemption of any shares of
Series A Preferred Stock pursuant to Section 2.03, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts of such sum as are, as nearly
as practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that (i) in
case the Company or the Depositary shall be required to and shall withhold from
any cash dividend or other cash distribution in respect of the Series A
Preferred Stock represented by the Receipts held by any holder an amount on
account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares represented by such Receipts subject to such
withholding shall be reduced accordingly and (ii) no cash dividends will be
paid in respect of any Depositary Share to the extent that it represents any
Series A Preferred Stock converted into Common Stock. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of
Receipts a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall receive any distribution other than cash on the deposited Series A
Preferred Stock, the Depositary shall, subject to Section 3.02, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.04
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution, except that no distribution will be made in respect of any
Depositary Share to the extent that it represents any Series A Preferred Stock
converted into Common Stock. If, in the opinion of the Depositary after
consultation with the Company, such distribution cannot be made proportionately
among such record holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on account of
taxes), the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section 3.02, be distributed or
made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities or property to the holders of
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Receipts unless the Company shall have provided to the Depositary an opinion of
counsel stating that such securities or property have been registered under the
Securities Act or do not need to be registered.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names deposited Series A Preferred Stock is registered on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Company shall instruct (including by the issue to such record holders of
warrants representing such rights, preferences or privileges); provided,
however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines upon advice of its legal
counsel that it is not lawful or feasible to make such rights, preferences or
privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Receipts who do
not desire to exercise such rights, preferences or privileges, the Depositary
shall then, if so instructed by the Company, and if applicable laws or the
terms of such rights, preferences or privileges so permit, sell such rights,
preferences or privileges of such holders at public or private sale, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Section 3.01 and Section 3.02, be distributed
by the Depositary to the record holders of Receipts entitled thereto as
provided by Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of such rights, preferences or
privileges, unless the Company shall have provided to the Depositary an opinion
of counsel stating that such rights, preferences or privileges have been
registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders
of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees that it will promptly file
a registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of the Securities Act and the
Company shall have provided to the Depositary an opinion of counsel to such
effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees to use its best efforts to take such
action or obtain such authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges.
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SECTION 4.04. NOTICE OF DIVIDENDS; FIXING OF RECORD DATE FOR HOLDERS
OF RECEIPTS. Whenever any cash dividend or other cash distribution shall
become payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited Series A Preferred Stock, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of such Series A Preferred Stock are
entitled to vote or of which holders of such Series A Preferred Stock are
entitled to notice or (ii) any election on the part of the Company to redeem
any shares of such Series A Preferred Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Series A Preferred Stock) for the
determination of the holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the net proceeds
of the sale thereof, to give instructions for the exercise of voting rights at
any such meeting or to receive notice of such meeting or whose Depositary
Shares are to be so redeemed.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting
at which the holders of deposited Series A Preferred Stock are entitled to
vote, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall be provided by the Company and
which shall contain (i) such information as is contained in such notice of
meeting, (ii) a statement that the holders of Receipts at the close of business
on a specified record date fixed pursuant to Section 4.04 will be entitled,
subject to any applicable provision of law, to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Series A
Preferred Stock represented by their respective Depositary Shares and (iii) a
brief statement as to the manner in which such instructions may be given. Upon
the written request of a holder of a Receipt on such record date, the
Depositary shall vote or cause to be voted the amount of Series A Preferred
Stock represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. To the extent any
such instructions request the voting of a fractional interest of a share of
deposited Series A Preferred Stock, the Depositary shall aggregate such
interest with all other fractional interests resulting from requests with the
same voting instructions and shall vote the number of whole votes resulting
from such aggregation in accordance with the instructions received in such
requests. The Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Series A Preferred Stock or cause such Series A Preferred Stock to be
voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting to the extent of the Series A Preferred
Stock represented by the Depositary Shares evidenced by such Receipt. The
Depositary shall not be required to exercise discretion in voting any Series A
Preferred Stock represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING SERIES A PREFERRED STOCK AND
RECLASSIFICATIONS, RECAPITALIZATION, ETC. Upon any change in par or stated
value, split-up, combination or any other reclassification of Series A
Preferred Stock, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation affecting the Company or to which it is a party
or sale of all or substantially all of the Company's assets, the Depositary
shall, upon the instructions of the Company, (i) make such adjustments in (a)
the fraction of an interest represented by one Depositary Share in one share of
Series A Preferred Stock and (b) the ratio of the redemption price per
Depositary Share to the redemption price of a share of Series A Preferred
Stock, in each case as may be required by
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or as is consistent with the provisions of the Designation to fully reflect the
effects of such change in par or stated value, split-up, combination or other
reclassification of Series A Preferred Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation or sale and (ii) treat
any shares of stock or other securities or property (including cash) that shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Series A Preferred Stock as new deposited property under this
Deposit Agreement, and Receipts then outstanding shall thenceforth represent
the proportionate interests of holders thereof in the new deposited property so
received in exchange for or upon conversion or in respect of such Series A
Preferred Stock. In any such case the Depositary may, in its discretion, with
the approval of the Company, execute and deliver additional Receipts, or may
call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited property. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such change in par or stated value, split-
up, combination or other reclassification of the Series A Preferred Stock or
any such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of all or substantially all the assets of the Company to
surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Series A Preferred Stock represented thereby only
into or for, as the case may be, the kind and amount of shares of stock and
other securities and property and cash into which the deposited Series A
Preferred Stock evidenced by such Receipts might have been converted or for
which such Series A Preferred Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
SECTION 4.07. INSPECTION OF REPORTS. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that
are both received by the Depositary as the holder of deposited Series A
Preferred Stock and made generally available to the holders of the Series A
Preferred Stock. In addition, the Depositary shall transmit certain notices
and reports to the holders of Receipts as provided in Section 5.05.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from
time to time by the Company, the Depositary shall furnish to the Company a
list, as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION 4.09. TAX AND REGULATORY COMPLIANCE. The Depositary shall be
responsible for (i) preparation and mailing of Forms 1099 for all open and
closed accounts, (ii) foreign tax withholding, (iii) withholding 31 % (or any
withholding as may be required at the then applicable rate) of dividends from
eligible holders of Receipts, (iv) mailing W-9 Forms to new holders of Receipts
without a certified taxpayer identification number, (v) processing certified
W-9 Forms, (vi) preparation and filing of state information returns and (vii)
escheatment services.
SECTION 4.10. WITHHOLDING. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is
obligated by law to withhold, the Depositary may dispose of all
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or a portion of such property in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes, by public or
private sale, and the Depositary shall distribute the net proceeds of any such
sale or the balance of any such property after deduction of such taxes to the
holders of Receipts entitled thereto in proportion to the number of Depositary
Shares held by them respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY
THE DEPOSITARY AND THE REGISTRAR. The Depositary shall maintain at the
Corporate Office facilities for the execution and delivery, transfer, surrender
and exchange, split-up, combination, conversion and redemption of Receipts and
deposit and withdrawal of Series A Preferred Stock and at the offices of the
Depositary's Agents, if any, facilities for the delivery, transfer, surrender
and exchange, split-up, combination, conversion and redemption of Receipts and
deposit and withdrawal of Series A Preferred Stock, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Series A Preferred Stock represented by such Depositary Shares shall be listed
on the New York Stock Exchange, Inc. or any other stock exchange, or quoted on
the NASDAQ National Market, the Depositary may, with the approval of the
Company, appoint a Registrar (acceptable to the Company) for registration of
such Receipts or Depositary Shares in accordance with the requirements of such
Exchange or the NASD. Such Registrar (which may be the Depositary if so
permitted by the requirements of such Exchange) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the approval of
the Company. If the Receipts, such Depositary Shares or such Series A
Preferred Stock are listed on one or more other stock exchanges or the NASDAQ
National Market, the Depositary will, at the request and expense of the
Company, arrange such facilities for the delivery, transfer, surrender,
redemption, coversion and exchange of such Receipts, such Depositary Shares or
such Series A Preferred Stock as may be required by law or applicable stock
exchange regulations.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY,
THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary,
any Depositary's Agent, any Registrar nor the Company shall incur any liability
to any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Articles or, in the case of the Company, the Depositary, the
Depositary's Agent or the Registrar, by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary,
any Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any
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Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of this
Deposit Agreement provide shall or may be done or performed, or by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY. Neither the Depositary, any Depositary's Agent,
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out of conduct constituting bad
faith, negligence (in the case of any action or inaction with respect to the
voting of the deposited Series A Preferred Stock), gross negligence or willful
misconduct in the performance of such duties as are specifically set forth in
this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Series A
Preferred Stock, Depositary Shares or Receipts that in its reasonable opinion
may involve it in expense or liability, unless indemnity reasonably
satisfactory to it against all expense and liability be furnished as often as
may be required, except that such party shall not be entitled to
indemnification for acts or omissions arising out of conduct constituting bad
faith, negligence (in the case of any action or inaction with respect to the
voting of the deposited Series A Preferred Stock, gross negligence or willful
misconduct in the performance of such duties as are specifically set forth in
this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information
provided by any person presenting Series A Preferred Stock for deposit, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent,
any Registrar and the Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document believed
by it in good faith to be genuine and to have been signed or presented by the
proper party or parties.
In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to
the full indemnification set forth in Section 5.06 hereof in connection with
any action so taken.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the deposited Series A Preferred Stock or for
the manner or effect of any such vote made, as long as any such action or
non-action is in good faith and does not result from negligence or willful
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misconduct of the Depositary. The Depositary undertakes, and any Registrar
shall be required to undertake, to perform such duties and only such duties as
are specifically set forth in this Deposit Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Depositary or any
Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any
Depositary's Agent, and any Registrar may own, buy, sell or deal in any class
of securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are acting
only in a ministerial capacity as Depositary for the deposited Series A
Preferred Stock; provided, however, that the Depositary agrees to comply with
all information reporting and withholding requirements applicable to it under
law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
deposited Series A Preferred Stock, the Depositary Shares, the Receipts (except
its countersignature thereon) or any instruments referred to therein or herein,
or as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement and for the validity of any action taken or required to be
taken by the Depositary in connection with this Deposit Agreement.
The Company agrees that it will register the deposited Series A
Preferred Stock and the Depositary Shares in accordance with the applicable
securities laws.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT
OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office
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in the United States of America and having a combined capital and surplus of at
least $50,000,000. If a successor depositary shall not have been appointed in
60 days, the resigning Depositary may petition a court of competent
jurisdiction to appoint a successor depositary. Every successor depositary
shall execute and deliver to its predecessor and to the Company an instrument
in writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of -all sums due it and on the written request of the
Company, shall promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all rights, title and interest in the deposited
Series A Preferred Stock and any moneys or property held hereunder to such
successor and shall deliver to such successor a list of the record holders of
all outstanding Receipts. Any successor depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted, or any corporation to which all or a substantial
part of the corporate trust or shareholder services business of the Depositary
may be transferred, shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. NOTICES, REPORTS AND DOCUMENTS. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at
the address recorded in the Depositary's books, copies of all notices and
reports (including financial statements) required by law, by the rules of any
national securities exchange upon which the Series A Preferred Stock, the
Depositary Shares or the Receipts are included for quotation or is listed or by
the Articles to be furnished by the Company to holders of the deposited Series
A Preferred Stock and, if requested by the holder of any Receipt, a copy of
this Deposit Agreement, the form of Receipt, the Designation and the form of
Series A Preferred Stock. Such transmission will be at the Company's expense
and the Company will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the record holders of Receipts at the Company's
expense such other documents as may be requested by the Company.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys' fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary's Agent or Registrar, respectively, under this
Deposit Agreement and the Receipts, except for any liability arising out of the
willful misconduct, gross negligence, negligence (in the case of any action or
inaction with respect to the voting of the deposited Series A Preferred Stock)
or bad faith on the part of any such person or persons. The obligations of the
Company set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent or termination of this Deposit
Agreement.
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SECTION 5.07. FEES, CHARGES AND EXPENSES. No charges and expenses of
the Depositary or any Depositary's Agent hereunder shall be payable by any
person, except as provided in this Section 5.07. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the Series
A Preferred Stock and the initial issuance of the Depositary Shares evidenced
by the Receipts, any redemption of the Series A Preferred Stock at the option
of the Company and all withdrawals of the Series A Preferred Stock by holders
of Depositary Shares. If a holder of Receipts requests the Depositary to
perform duties not required under this Deposit Agreement, the Depositary shall
notify the holder of the cost of the performance of such duties prior to the
performance thereof. Such holder will be liable for the charges and expenses
related to such performance. All other fees and expenses of the Depositary and
any Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be promptly paid as previously agreed between the
Depositary and the Company. The Depositary shall present its statement for
fees and expenses to the Company every month or at such other intervals as the
Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any provision
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
which (i) shall materially and adversely alter the rights of the holders of
Receipts or (ii) would be materially and adversely inconsistent with the rights
granted to the holders of the Series A Preferred Stock pursuant to the Articles
shall be effective unless such amendment shall have been approved by the
holders of at least two thirds (66 2/3%) of the Depositary Shares then
outstanding. In no event shall any amendment impair the right, subject to the
provisions of Section 2.06 and Section 2.07 and Article III, of any holder of
any Depositary Shares to surrender the Receipt evidencing such Depositary
Shares with instructions to the Depositary to deliver to the holder the
deposited Series A Preferred Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by this Deposit
Agreement as amended thereby.
SECTION 6.02. TERMINATION. This Deposit Agreement may be terminated
by the Company upon not less than 30 days' prior written notice to the
Depositary if the holders of at least two thirds (66 2/3%) of the Depositary
Shares then outstanding consent to such termination, whereupon the Depositary
shall deliver or make available to each holder of a Receipt, upon surrender of
the Receipt held by such holder, such number of whole or fractional shares of
deposited Series A Preferred Stock as are represented by the Depositary Shares
evidenced by such Receipt, together with any other property held by the
Depositary in respect of such Receipt. This Deposit Agreement will
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automatically terminate if (i) all outstanding Depositary Shares shall have
been redeemed pursuant to Section 2.03 or (ii) there shall have been made a
final distribution in respect of the deposited Series A Preferred Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.06 and Section 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page to this Deposit Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business hours at
the Corporate Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
SECTION 7.02. EXCLUSIVE BENEFITS OF PARTIES. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at:
INDEPENDENT BANK CORPORATION
000 Xxxx Xxxx Xxxxxx, X.X. Xxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
Telephone: (000) 000-0000
or at any other address of which the Company shall have notified the Depositary
in writing.
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Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duty given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or telex or telecopier message received by it from the other or from any holder
of a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint
additional Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the law of the State of New
York applicable to agreements made and to be performed in said State.
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT AND DESIGNATION.
Copies of this Deposit Agreement and the Designation shall be filed with the
Depositary and the Depositary's Agents and shall be open to inspection during
business hours at the Corporate Office and the respective offices of the
Depositary's Agents, if any, by any holder of any Receipt.
SECTION 7.09. HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, Independent Bank Corporation and State Street Bank
and Trust Company have duly executed this Deposit Agreement as of the day and
year first above set forth and all holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.
INDEPENDENT BANK CORPORATION
By________________________________
Authorized Officer
STATE STREET BANK AND TRUST COMPANY
By________________________________
Authorized Signatory
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TEMPORARY RECEIPT -- Exchangeable for Definitive Engraved Receipt When Ready
for Delivery
NUMBER
DEPOSITARY SHARES
SEE REVERSE FOR ADDITIONAL
INFORMATION AND CERTAIN DEFINITIONS
CUSIP _____________________
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/4 OF A SHARE OF
________% CUMULATIVE, CONVERTIBLE PREFERRED STOCK, SERIES A, WITHOUT PAR VALUE,
OF
INDEPENDENT BANK CORPORATION
(Incorporated under the laws of the State of Michigan)
THIS DEPOSITARY RECEIPT IS TRANSFERABLE IN BOSTON OR IN THE CITY OF NEW YORK
STATE STREET BANK AND TRUST COMPANY, as Depositary (the "Depositary"), hereby
certifies that
is the registered owner of
DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing one fouth (1/4) of
one share of ________% Cumulative, Convertible Preferred Stock, Series A,
without par value (the "Stock"), of Independent Bank Corporation, a corporation
duly organized and existing under the laws of the State of Michigan (the
"Company"), on deposit with the Depositary, subject to the terms and entitled
to the benefits of the Deposit Agreement dated as of October ____, 1996 (the
"Deposit Agreement"), among the Company, the Depositary and the holders from
time to time of Receipts for Depositary Shares. By accepting this Receipt, the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized officer or, if a Registrar in respect
of the Receipts (other than the Depositary) shall have been appointed, by the
manual signature of a duly authorized officer of such Registrar.
Dated:
STATE STREET BANK AND TRUST COMPANY,
as Depositary, Transfer Agent and Registrar
By
Authorized Signatory
26
[FORM OF REVERSE OF RECEIPT]
INDEPENDENT BANK CORPORATION
INDEPENDENT BANK CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF A RECEIPT WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
AND A STATEMENT OR SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF
STOCK OR SERIES THEREOF WHICH THE COMPANY IS AUTHORIZED TO ISSUE AND OF THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
________________________________________________________
The following abbreviations when used in the instructions on the face
of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian
--------------- ---------------
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with
right of survivorship
and not as tenants in -------------------------------------------------------
common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, __________________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________
______________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
______________________________________________________________________
_____________________________________________ Depositary Shares represented by
the within Receipt, and do hereby irrevocably constitute and appoint
_____________________________________________ Attorney to transfer the said
Depositary Shares on the books of the within named Depositary with full power
of substitution in the premises.
Date________________________ __________________________________________
NOTICE: The signature to the assignment
must correspond with the name as
written upon the face of this
Receipt in every particular,
without alteration or enlargement
or any change whatever.
