EXHIBIT 4(F)
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INMC MORTGAGE HOLDINGS, INC.
Issuer
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Depositary
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Deposit Agreement
Dated as of _____ __, 1998
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Shares of Class __ Preferred Stock
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Application............ 1
SECTION 1.01. Definitions................................................. 1
ARTICLE II
The Depositary Receipts, Deposit of Class __ Preferred Stock.......... 3
SECTION 2.01. Form and Transferability of Depositary Receipts............. 3
SECTION 2.02. Deposit of Class Preferred Stock; Execution and Delivery of
Depositary Receipts........................................ 4
SECTION 2.03. Optional Redemption of Class __ Preferred Stock for Cash.... 5
SECTION 2.04. Registration of Transfers of Depositary Receipts............ 5
SECTION 2.05. Changes Affecting Class __ Preferred Stock and
Reclassifications, Recapitalizations, etc.................. 5
SECTION 2.06. Combinations and Split-ups of Depositary Receipts........... 6
SECTION 2.07. Surrender of Depositary Receipts and Withdrawal of Class
Preferred Stock............................................ 6
SECTION 2.08. Limitations on Execution and Delivery, Transfer, Split-up.
Combination, Surrender, and Exchange of Depositary Receipts. 7
SECTION 2.09. Lost Depositary Receipts, etc................................ 7
SECTION 2.10. Cancellation and Destruction of Surrendered Depositary
Receipts.................................................... 7
SECTION 2.11. Conversion Rights.......................................... 8
ARTICLE III
Certain Obligations of Holders of Depositary 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.............................. 9
ARTICLE IV
The Class __ 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............. 10
SECTION 4.04. Fixing of Record Date for Holders of Depositary Receipts.... 11
SECTION 4.05. Voting Rights............................................... 11
SECTION 4.06. Redemptions................................................. 12
SECTION 4.07. Inspection of Reports....................................... 12
SECTION 4.08. Notices, Reports, and Documents............................. 12
SECTION 4.09. Lists of Depositary Receipt Holders......................... 13
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SECTION 4.10. Tax and Regulatory Compliance............................... 13
SECTION 4.11. Withholding................................................. 13
ARTICLE V
The Depositary and the Company......................... 13
SECTION 5.01. Maintenance of Offices, Agencies, and Transfer Books by the
Depositary and the Registrar............................... 13
SECTION 5.02. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar, or the Company......... 14
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar, and the Company................................. 14
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary....................................... 15
SECTION 5.05. Indemnification by the Company.............................. 16
SECTION 5.06. Fees, Charges, and Expenses................................. 16
ARTICLE VI
Amendment and Termination........................... 16
SECTION 6.01. Amendment................................................... 16
SECTION 6.02. Termination................................................. 17
ARTICLE VII
Miscellaneous................................. 17
SECTION 7.01. Counterparts................................................ 17
SECTION 7.02. Exclusive Benefits of Parties............................... 17
SECTION 7.03. Invalidity of Provisions.................................... 17
SECTION 7.04. Notices..................................................... 18
SECTION 7.05. Depositary's Agents......................................... 18
SECTION 7.06. Holders of Depositary Receipts Are Parties.................. 18
SECTION 7.07. Governing Law............................................... 18
SECTION 7.08. Inspection of Deposit Agreement and Designating Amendment... 19
SECTION 7.09. Headings.................................................... 19
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DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT, dated ____________, 1998 between INMC MORTGAGE
HOLDINGS, INC., a Delaware corporation, ______________________________, a
___________ banking corporation, as Depositary, and all holders from time to
time of Depositary Receipts issued under this Agreement;
WITNESSETH:
WHEREAS, the parties desired to provide for the deposit of shares of the
Company's Class __ Preferred Stock with the Depositary for the purposes set
forth in this Agreement, and for the issuance of the Depositary Receipts
evidencing Depositary Shares representing a fractional interest in the Class __
Preferred Stock to be deposited; and
WHEREAS, the Depositary Receipts are to be substantially in the form of
Exhibit A to this Agreement, with appropriate insertions, modifications, and
omissions;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.
Except as otherwise expressly provided in this Agreement or unless the
context otherwise requires:
(1) defined terms include the plural as well as the singular;
(2) the words "herein," "hereof," "hereto," and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section, or other subdivision; and
(3) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both," not "either A or B but not both").
"Agreement" or "Deposit Agreement" means this agreement, as it may be
amended, modified, or supplemented from time to time.
"Certificate of Incorporation" means the certificate of incorporation
(including any Designating Amendment), as amended from time to time, of the
Company.
"Class __ Preferred Stock" means shares of the Company's ____% Class __
Preferred Stock, $0.01 par value per share, and unless the context requires
otherwise refers to the shares that have been deposited under this Agreement.
"Company" means INMC Mortgage Holdings, Inc., a Delaware corporation, and
its successors.
"Corporate Office" means the corporate office of the Deposit at which at
any particular time its business relating to this Deposit Agreement is
administered, which is currently located at ______________________________, but
shall also include any other locations it may choose to designate generally or
in connection with any specific event.
"Depositary" means the depositary named in the opening clause of this
Agreement and any successor depositary under this Agreement.
"Depositary Receipt" means a Depositary Receipt issued under this Agreement
to evidence one or more Depositary Shares, whether in definitive or temporary
form, substantially in the form of Exhibit A. Any reference to a Depositary
Receipt is to be treated as a reference also to the underlying Depositary Shares
represented by the Depositary Receipt and the underlying Class __ Preferred
Stock represented by the underlying Depositary Shares. For example, redemption
of a Depositary Receipt is the redemption of the Depositary Shares (evidenced by
the Depositary Receipt) because of the redemption of the Class __ Preferred
Stock share represented by the Depositary Share.
"Depositary Share" means a fractional interest of ____ of a share of Class
__ Preferred Stock deposited with the Depositary and the same proportionate
interest in any other property received by the Depositary relating to that share
of Class __ Preferred Stock and held under this Deposit Agreement, all as
evidenced by the Depositary Receipts. Any reference to a Depositary Share is to
be treated as a reference also to the fractional interest in the underlying
Class __ Preferred Stock represented by the Depositary Share. For example, the
redemption price of a Depositary Share is the portion of the redemption price of
a share of Class __ Preferred Stock that is attributed to the Depositary Share
because it represents a fractional interest in the redeemed share of Class __
Preferred Stock.
"Depositary's Agent" means an agent appointed by the Depositary as provided
in Section 7.05.
"Designating Amendment" means the Designating Amendment filed with the
Secretary of State of the State of Delaware establishing the Class __ Preferred
Stock as a separate class of Preferred Stock of the Company, as it may be
amended from time to time.
"Record Date" means the date fixed pursuant to Section 4.04 with respect to
the applicable event.
"Record holder" or "holder" as applied to a Depositary Receipt means the
person in whose name a Depositary Receipt is registered in the registry book
maintained by the Depositary. When the term is used with reference to an event
for which a Record Date is set, it means the person in whose name the Depositary
Receipt is registered in the registry book as owner on the Record Date.
"Registrar" means the Depositary or any other bank or trust company
subsequently appointed to register ownership and transfers of Depositary
Receipts or the deposited Class __ Preferred Stock, as the case may be. If the
Registrar is not the Depositary, then any functions ordinarily associated with a
Registrar referred to in this Agreement as being undertaken by the Depositary
shall instead be undertaken by the Registrar, and the agreement with the
Registrar shall so reflect.
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"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission under that Act.
"Transfer Agent" means the Depositary or any other bank or trust company
subsequently appointed to transfer the Depositary Receipts or the deposited
Class __ Preferred Stock, as the case may be. If the Transfer Agent is not the
Depositary, then any functions ordinarily associated with a transfer agent
referred to in this Agreement as being undertaken by the Depositary shall
instead be undertaken by the Transfer Agent, and the agreement with the Transfer
Agent shall so reflect.
ARTICLE II
The Depositary Receipts, Deposit of Class __ Preferred Stock
SECTION 2.01. Form and Transferability of Depositary Receipts. Definitive
Depositary Receipts will be engraved or printed or lithographed with steel-
engraved borders and underlying tint and will be substantially in the form of
EXHIBIT A, with appropriate insertions, modifications, and omissions. Pending
the preparation of definitive Depositary Receipts, temporary Depositary Receipts
may be printed, lithographed, typewritten, mimeographed, or otherwise prepared
substantially of the tenor of the definitive Depositary Receipts in lieu of
which they are to be issued. If temporary Depositary Receipts are issued, the
Company and the Depositary will cause definitive Depositary Receipts to be
prepared without unreasonable delay.
After the preparation of definitive Depositary Receipts, the temporary
Depositary Receipts will be exchangeable for definitive Depositary Receipts upon
surrender of the temporary Depositary Receipts at the Corporate Office without
charge to the holder. Upon surrender for cancellation of any temporary
Depositary Receipts, the Depositary will execute and deliver definitive
Depositary Receipts representing the same number of Depositary Shares as
represented by the surrendered temporary Depositary Receipts. The exchange will
be made at the Company's expense. Until so exchanged, the temporary Depositary
Receipts will be entitled to the same benefits under this Agreement as
definitive Depositary Receipts.
Depositary Receipts will be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary. If a Registrar (other
than the Depositary) has been appointed, then the Depositary's execution may be
by a facsimile signature, and the Depositary Receipts will also be countersigned
by manual signature of a duly authorized officer of the Registrar. No Depositary
Receipt will be entitled to any benefits under this Agreement or be valid for
any purpose unless it has been executed as provided in this paragraph. The
Depositary will record on its books each Depositary Receipt that is executed and
delivered.
Except as the Depositary may otherwise determine, Depositary Receipts will
be in denominations of any number of whole Depositary Shares. All Depositary
Receipts will be dated the date of their issuance.
Depositary Receipts may have the legends or recitals or changes required by
the Depositary and not inconsistent with the provisions of this Agreement, or
required to comply with any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the Class __ Preferred Stock,
the Depositary Shares, or the Depositary Receipts may be listed, or required to
conform with any
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ordinary usage, or required to indicate any special limitations or restrictions
to which any particular Depositary Receipt is subject.
Title to any Depositary Receipt that is properly endorsed or accompanied by
a properly executed instrument of transfer or endorsement will be transferable
by delivery with the same effect as in the case of a negotiable instrument.
Until a Depositary Receipt is transferred on the books of the Depositary, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder of the Depositary Receipt as the absolute owner for the purpose of
determining the person entitled to distributions of dividends or other
distributions, to exercise any conversion rights, to any notice, and for all
other purposes.
SECTION 2.02. Deposit of Class __ Preferred Stock; Execution and Delivery
of Depositary Receipts. Concurrently with the execution of this Agreement, the
Company is delivering to the Depositary a certificate or certificates,
registered in the name of the Depositary and evidencing shares of Class __
Preferred Stock. The Company is also delivering to the Depositary a written
order directing the Depositary to execute and deliver to, or upon the written
order of, the persons named in the written order Depositary Receipts for the
Depositary Shares representing the Class __ Preferred Stock. The Depositary
acknowledges receipt of the Class __ Preferred Stock and agrees to hold the
Class __ Preferred Stock in an account with the Depositary. [The Company
appoints the Depositary as the Registrar and transfer agent for the Class __
Preferred Stock deposited under this Agreement, and the Depositary accepts the
appointment and, as such, will reflect changes in the number of shares
(including any fractional shares) of Class __ Preferred Stock held by it by
notation, book-entry, or other appropriate method.]
The Depositary will execute and deliver to, or upon the order of, the
persons named in the written order Depositary Receipts for the number of whole
Depositary Shares representing the Class __ Preferred Stock. The Depositary
Receipts will be registered in the names requested by the persons named in the
written order. The Depositary will execute and deliver the Depositary Receipts
at the Corporate Office, except that, at the request, risk, and expense of any
person requesting it, the delivery may be made at a place designated by that
person. Subject to the terms of this Agreement, each owner of a Depositary Share
is entitled, proportionately, to all the rights, preferences and privileges of
the Class __ Preferred Stock represented by the Depositary Share, including the
dividend, voting, redemption, conversion, and liquidation rights contained in
the Designating Amendment.
Whenever Class __ Preferred Stock is presented for deposit by the Company
the Depositary may require the deposit to be accompanied by an agreement,
assignment, or other instrument satisfactory to the Depositary. This instrument
will provide for the prompt transfer to the Depositary (or its nominee) of any
dividend, right to subscribe for additional Class __ Preferred Stock, or right
to receive other property that any person in whose name the Class __ Preferred
Stock is (or has been) registered may thereafter receive on the Class __
Preferred Stock. In lieu of this instrument, the Depositary may accept an
indemnity or any other agreement it deems satisfactory.
Other than in the case of splits, combinations, or other reclassifications
affecting the Class __ Preferred Stock, or in the case of any dividends in, or
other distributions of, additional Class __ Preferred Stock, no more than the
number of shares constituting the Class __ Preferred Stock set forth in the
Designating Amendment may be deposited under this Agreement.
The Company will deliver to the Depositary from time to time the quantity
of Depositary Receipts the Depositary requests to enable the Depositary to
perform its obligations under this Agreement.
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SECTION 2.03. Optional Redemption of Class __ Preferred Stock for Cash.
Whenever the Company redeems shares of Class __ Preferred Stock in accordance
with the Designating Amendment, if fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be selected
pro rata (as nearly as may be practicable without creating fractional Depositary
Shares) or by any other equitable method determined by the Company.
If notice of redemption has been properly given and the Company has then or
previously paid to the Depositary the full redemption price of the Depositary
Shares to be redeemed, the Depositary will redeem the appropriate number of
Depositary Shares and take any other action necessary to carry out the
provisions of the Designating Amendment as it would apply by representation to
the Depositary Shares. Assuming the Company redeems the appropriate shares of
Class __ Preferred Stock, from and after the cash redemption date all dividends
on the shares of Class __ Preferred Stock called for redemption will cease to
accrue, the Depositary Shares called for redemption will no longer be
outstanding, and all rights accruing to a holder from the Depositary Receipts
evidencing those Depositary Shares (except the right to receive the full
redemption price) will terminate. Upon surrender of the appropriate Depositary
Receipts, the Depositary Shares to be redeemed will be redeemed at a cash
redemption price of $______ per Depositary Share. The full redemption price is
the cash redemption price plus any accrued and unpaid dividends to the cash
redemption date and any other money or other property to which record holders
are entitled upon redemption.
If fewer than all of the Depositary Shares evidenced by a Depositary
Receipt are called for redemption, in addition to the full redemption price, the
Depositary will deliver to the holder of the Depositary Receipt upon its
surrender to the Depositary a new Depositary Receipt for the number of
unredeemed Depositary Shares evidenced by the prior Depositary Receipt.
SECTION 2.04. Registration of Transfers of Depositary Receipts. The
Company appoints the Depositary as the Registrar and Transfer Agent for the
Depositary Receipts. The Depositary accepts the appointment and agrees to
register on its books from time to time transfers of Depositary Receipts upon
their surrender 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 that
may be required by law. Upon a proper surrender, the Depositary will execute new
Depositary Receipts and deliver them to or upon the order of the person entitled
to them evidencing the same aggregate number of Depositary Shares evidenced by
the Depositary Receipts surrendered.
SECTION 2.05. Changes Affecting Class __ Preferred Stock and
Reclassifications, Recapitalizations, etc. Certain corporate events necessitate
adjustments in the relationship of Depositary Shares to the Class __ Preferred
Stock. These "corporate events" are: any change in par or stated value, split-
up, combination, or any other reclassification of Class __ 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. If any of these corporate events
occur the Company will instruct the Depositary to make adjustments in (a) the
fraction of an interest represented by one Depositary Share in one share of
Class __ Preferred Stock and (b) the ratio of the redemption price per
Depositary Share to the redemption price of a share of Class __ Preferred Stock,
in each case consistent with the provisions of the Designating Amendment and as
necessary to reflect the effects of the corporate event. The Company will also
instruct the Depositary to treat any shares of stock or other securities or
property (including cash) that is received by the Depositary in exchange for, or
upon conversion of, or in respect of, the Class __ Preferred Stock as new
deposited property under this Agreement. The Depositary Receipts then
outstanding will thenceforth have the appropriate proportionate
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interests in the new deposited property. Upon the occurrence of a corporate
event the Depositary may, in its discretion, with the approval of the Company,
execute and deliver additional Depositary Receipts, or may call for the
surrender of all outstanding Depositary Receipts to be exchanged for new
Depositary Receipts specifically describing the new deposited property.
Anything in this Agreement to the contrary notwithstanding, holders of
Depositary Receipts will have the right from and after the effective date of any
corporate event to surrender their Depositary Receipts to the Depositary with
instructions to convert, exchange, or surrender the Class __ 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 Class
__ Preferred Stock evidenced by the Depositary Receipts might have been
converted or for which the Class __ Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of the corporate event.
The Company will cause effective provision to be made in the charter of the
resulting or surviving corporation (if other than the Company) for protection of
such rights as may be applicable upon exchange of the Class __ Preferred Stock
for securities or property or cash of the surviving corporation in connection
with the corporate event. The Company will cause any surviving corporation (if
other than the Company) expressly to assume the obligations of the Company under
this Agreement.
SECTION 2.06. Combinations and Split-ups of Depositary Receipts. Upon
surrender of Depositary Receipts at the Corporate Office to effect a split-up or
combination of Depositary Receipts, the Depositary will execute and deliver new
Depositary Receipts in the authorized denominations requested evidencing the
same aggregate number of Depositary Shares that were evidenced by the Depositary
Receipts surrendered.
SECTION 2.07. Surrender of Depositary Receipts and Withdrawal of Class __
Preferred Stock. Any holder of a Depositary Receipt may withdraw any or all of
the [whole] shares of Class __ Preferred Stock the Depositary Receipt represents
(and any money and other property relating to the Depositary Receipt) by
surrendering the Depositary Receipt at the Corporate Office. However, a holder
of a Depositary Receipt may not withdraw any shares Class __ Preferred Stock
that have previously been called for redemption. The Depositary may require that
the Depositary Receipt surrendered be properly endorsed in blank or accompanied
by a properly executed instrument of transfer or endorsement in blank. After
proper surrender, without unreasonable delay, the Depositary will deliver to the
holder, or to the persons designated by the holder, the number of whole [or
fractional] shares of Class __ Preferred Stock (and any money and other
property) represented by the Depositary Receipt surrendered for withdrawal.
Delivery of Class __ Preferred Stock (and any money and other property being
withdrawn) may be made by the delivery of certificates, documents of title, and
other instruments the Depositary deems appropriate. Holders of the whole [or
fractional] shares of Class __ Preferred Stock will not be entitled to re-
deposit the Class __ Preferred Stock with the Depositary or to receive
Depositary Shares therefor.
If a withdrawal is for less than all of the Class __ Preferred Shares
ultimately represented by the tendered Depositary Receipt, then in addition to
the withdrawal proceeds, the Depositary will deliver to the holder, or (subject
to Section 2.04) upon his order, a new Depositary Receipt for the number of
Depositary Shares that represents the amount of Class __ Preferred Shares not
withdrawn.
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If the Class __ Preferred Stock and any money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Depositary Receipt being surrendered, the holder will execute and
deliver to the Depositary a written order so directing the Depositary.
The Depositary will deliver the Class __ Preferred Stock (and any money and
other property represented by the surrendered Depositary Receipts) at the
Corporate Office, except that, at the request, risk, and expense of the
surrendering holder delivery may be made at a place designated by the
surrendering holder.
SECTION 2.08. Limitations on Execution and Delivery, Transfer, Split-up.
Combination, Surrender, and Exchange of Depositary Receipts. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender, or exchange of any Depositary Receipt (each, an "Issue Event"), 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,
if the Depositary or the Company has made the payment, the reimbursement to it)
of any tax or other governmental charge on an Issue Event (including any tax or
charge with respect to the Class __ Preferred Stock being deposited or
withdrawn); (ii) proof satisfactory to it of the identity and genuineness of any
signature (or the authority of any signature); and (iii) compliance with
regulations the Depositary or the Company may establish consistent with the
provisions of this Agreement that are required by any securities exchange upon
which the Class __ Preferred Stock, the Depositary Shares, or the Depositary
Receipts may be included for quotation or listed.
The deposit of Class __ Preferred Stock may be refused, the delivery of
Depositary Receipts may be suspended, the transfer of Depositary Receipts may be
refused, and any Issue Event or redemption of outstanding Depositary Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if the 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
Agreement.
SECTION 2.09. Lost Depositary Receipts, etc. A mutilated Depositary
Receipt may be surrendered and the Depositary will execute and deliver in
exchange for it a new Depositary Receipt of like tenor and amount. If the holder
of a Depositary Receipt provides the Company and the Depositary with (i)
evidence reasonably satisfactory to them of the destruction, loss, or theft of a
Depositary Receipt and of his ownership of the Depositary Receipt and (ii)
reasonable indemnification satisfactory to the Depositary and the Company, then,
in the absence of notice to the Depositary or the Company that the Depositary
Receipt has been acquired by a bona fide purchaser, the Depositary will
authenticate and deliver in lieu of it, a new Depositary Receipt of like tenor
and amount.
SECTION 2.10. Cancellation and Destruction of Surrendered Depositary
Receipts. All Depositary Receipts surrendered to the Depositary or any
Depositary's Agent will be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy cancelled
Depositary Receipts.
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Indenture
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SECTION 2.11. Conversion Rights. Depositary Receipts may be surrendered
with written instructions to the Depositary to instruct the Company to cause the
conversion of any specified number of whole [or fractional] shares of Class __
Preferred Stock evidenced by the Depositary Receipts into the number of whole
shares or other amount of securities issuable upon conversion of the Class __
Preferred Stock pursuant to the Designating Amendment (those securities, the
"Securities Issuable Upon Conversion"). A holder of a Depositary Receipt may
surrender the Depositary Receipt to the Depositary at the Corporate Office
together with (i) a properly completed notice of conversion (a "Notice of
Conversion") and (ii) any payment in respect of dividends required by the fifth
paragraph of this Section 2.11. The Notice of Conversion shall direct the
Depositary to instruct the Company to cause the conversion of the number of
shares [or fractional shares] of Class __ Preferred Stock specified in the
Notice of Conversion into the appropriate amount of Securities Issuable Upon
Conversion. If a holder delivers to the Depositary for conversion Depositary
Receipts that in the aggregate are convertible into less than the minimum
denomination for Securities Issuable Upon Conversion or into an amount that is
not an appropriate multiple of the denomination for the Securities Issuable Upon
Conversion, then the holder shall receive (in accordance with the last paragraph
of this Section 2.11) cash in lieu of any fractional denomination of Securities
Issuable Upon Conversion that would be due.
Upon receipt by the Depositary of a Depositary Receipt and a properly
completed Notice of Conversion, the Depositary shall, on the date of receipt of
the Notice of Conversion, instruct the Company (i) to cause the conversion of
the appropriate number of shares of Class __ Preferred Stock and (ii) to cause
the delivery to the record holder of the Depositary Receipts of appropriate
certificates evidencing the appropriate amount of Securities Issuable Upon
Conversion, and the amount of money, if any, to be paid in lieu of any
fractional Securities Issuable Upon Conversion.
The Company will cause the delivery to the record holder of (i) a
certificate evidencing the appropriate amount of Securities Issuable Upon
Conversion and (ii) any money or other property to which the record holder is
entitled. In connection with the conversion, the Depositary (i) will deliver
to the record holder a Depositary Receipt evidencing the number of Depositary
Shares, if any, that the record holder has elected not to convert in excess of
the number of Depository Shares representing Class __ Preferred Stock which has
been so converted, (ii) will cancel the Depository Shares evidenced by
Depository Receipts surrendered for conversion, and (iii) will deliver for
cancellation to the transfer agent for the Class __ Preferred Stock the shares
of Class __ Preferred Stock evidenced by the converted Depository Receipts.
If any Class __ Preferred Stock is called by the Company for redemption
or exchange, the Depositary Shares representing that Class __ Preferred Stock
may be converted into Securities Issuable Upon Conversion until and including,
but not after, the close of business on the applicable redemption date or
exchange date. Delivery to the Depositary of Depositary Receipts representing
any Class __ Preferred Stock called for redemption or exchange, together with a
properly completed Notice of Conversion shall be treated as receipt by the
Company of the equivalent conversion notice.
Upon any conversion of Class __ Preferred Stock no allowance,
adjustment, or payment will be made for accrued dividends on the converted Class
__ Preferred Stock, except that if a Depositary Receipt is surrendered for
conversion during the period between the opening of business on any dividend
record date and the close of business on the corresponding dividend payment
date, then the Depositary Receipt must be accompanied by a payment equal to the
dividend that the record holder of that Depositary Receipt is entitled to
receive on the dividend payment date on the underlying Class __ Preferred Stock
to be converted.
Upon the conversion of any shares of Class __ Preferred Stock for which
a Notice of Conversion has been received by the Depositary, all dividends on the
Depositary Shares shall cease to accrue, the Depositary Shares will no longer be
outstanding, all rights of the holder of the Depositary Receipt with respect to
those Depositary Shares (except the right to receive the Securities Issuable
Upon Conversion and any cash payable for any fractional shares and any accrued
dividends on the converted Class __ Preferred Stock) shall terminate, and the
Depositary Receipt evidencing those Depositary Shares will be cancelled in
accordance with Section 2.10.
No fractional shares of Securities Issuable Upon Conversion will be
issuable upon conversion of Class __ Preferred Stock. If, except for the
provisions of this Section 2.11 and the Designating Amendment, any holder of
Depositary Receipts surrendered for conversion would be entitled to a fractional
share of Securities Issuable Upon Conversion, the Company will cause to be
delivered to the holder an amount in cash for the fractional share determined
pursuant to the Designating Amendment.
ARTICLE III
Certain Obligations of Holders of Depositary Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates, and Other Information.
Any holder of a Depositary Receipt may be required from time to time to file a
proof of residence or other information, to execute any certificates, and to
make any representations and warranties that the Depositary or the Company
reasonably deem necessary or proper. Until these requirements are complied with,
the Depositary or the Company may withhold or delay (i) the delivery of any
Depositary Receipt, (ii) the transfer, redemption, or exchange of any Depositary
Receipt, (iii) the withdrawal of Class __ Preferred Stock, (iv) the distribution
of any dividend or other distribution, or (v) the sale of any rights or of the
proceeds thereof.
SECTION 3.02. Payment of Fees and Expenses. Holders of Depositary
Receipts will be obligated to make payments to the Depositary of certain fees
and expenses, as provided in Section 5.06, or to provide evidence reasonably
satisfactory to the Depositary that the fees and expenses have been paid. Until
the payment is made, transfer of any Depositary Receipt or any withdrawal of the
Class __ Preferred Stock or any money or other property evidenced by the
Depositary Receipt may be refused, any dividend or other distribution may be
withheld, and any part or all of the Class __ Preferred Stock or other property
evidenced by the Depositary Receipt may be sold for the account of the holder of
the Depositary Receipt (after attempting by reasonable means to notify the
holder a reasonable time before the sale). Any dividend or other distribution so
withheld and the proceeds of any sale may be applied to any payment of these
fees or expenses. The holder of the Depositary Receipt will remain liable for
any deficiency.
SECTION 3.03. Representations and Warranties. The Company represents
and warrants that the Class __ Preferred Stock deposited by it and each
certificate therefor are valid, and that the Company is duly authorized to make
the deposit. The Company further represents and warrants that the Class __
Preferred Stock, when issued, will be duly authorized, validly issued, fully
paid, and nonassessable.
The Company represents and warrants that the Depositary Receipts, when
issued, will evidence legal and valid interests in the Depositary Shares, and
each Depositary Share will represent a legal and valid ___ fractional interest
in a share of Class __ Preferred Stock.
The Company represents and warrants that the [securities] issuable
upon conversation of the Class __ Preferred Stock, when issued, will be duly
authorized, validly issued, fully paid, and nonassesable.
These representations and warranties will survive the deposit of the
Class __ Preferred Stock and the issuance of Depositary Receipts [and any
conversion of the Class __ Preferred Stock].
ARTICLE IV
The Class __ Preferred Stock; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary receives
any cash dividend or other cash distribution on the Class __ Preferred Stock,
including any cash received upon redemption of any shares of Class __ Preferred
Stock, the Depositary will divide the cash received pro rata, as nearly as
practicable, among the Depositary Receipts, and then distribute it to the
persons who were record holders of Depositary Receipts on the Record Date. If
the Company or the Depositary is required to withhold taxes from any cash
dividend or other cash distribution on the Depositary Receipts held by any
holder, the amount made available for distribution or distributed on these
Depositary Receipts subject to withholding
Deposit Agreement
will be reduced accordingly. The Depositary will distribute or make available
for distribution only the amount that can be distributed without attributing to
any Depositary Share a fraction of one cent. Any balance not so distributable
will be held by the Depositary (without liability for interest thereon) and will
be added to the next sum received by the Depositary for distribution to record
holders of Depositary Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary
receives any distribution other than cash on the Class __ Preferred Stock, the
Depositary will divide the property received by it pro rata, as nearly as
practicable, among the Depositary Receipts in any manner that the Depositary and
the Company deem equitable and practicable for accomplishing the distribution,
and then distribute it to the persons who were record holders of Depositary
Receipts on the Record Date.
If, in the opinion of the Depositary after consultation with the
Company, a distribution cannot be made proportionately among the 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, the distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt a method that it deems
equitable and practicable for the purpose of effecting the distribution. That
method may be the sale (at public or private sale) of any or all of the
securities or property thus received at places and upon terms it deems proper.
The net proceeds of any sale will be distributed by the Depositary pursuant to
Section 4.01. The Company will not make any distribution of securities or
property to the holders of Depositary Receipts unless the Company has provided
to the Depositary an opinion of counsel stating that the 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 offers or causes to be offered to the holders of Class __ Preferred
Stock any rights, preferences, or privileges to subscribe for or to purchase any
securities or any rights, preferences, or privileges of any other nature
(collectively, "Rights"), then those Rights will be made available by the
Depositary to the record holders of Depositary Receipts in a manner determined
by the Company (including by issuing warrants representing the Rights to the
record holders). If at the time of issue or offer of the Rights the Company
determines that it is not lawful or feasible to make the Rights available to the
holders of Depositary Receipts (by the issue of warrants or otherwise), or if
instructed to do so by the holders of Depositary Receipts, then the Depositary
will (if so instructed by the Company, and if applicable laws or the terms of
the Rights permit) sell the Rights at public or private sale, at places and upon
terms it deems proper. The net proceeds of any sale will be distributed by the
Depositary to the appropriate record holders of Depositary Receipts pursuant to
Section 4.01. The Company will not make any distribution of Rights unless the
Company has provided to the Depositary an opinion of counsel stating the Rights
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 relate is required for holders of Depositary Receipts to be offered
or sold the securities to which the Rights relate, the Company agrees that it
will promptly file a registration statement pursuant to the Securities Act with
respect to the Rights and the underlying securities and use its best efforts to
cause the registration statement to become effective sufficiently in advance of
the expiration of the Rights to enable the holders to exercise the Rights. In no
event will the Depositary make available to the holders of Depositary Receipts
any right, preference, or privilege to subscribe for or to purchase any
securities until the registration statement has become effective, or unless the
offering
9
Deposit Agreement
and sale of the securities to the holders are exempt from registration under the
Securities Act and the Company has provided to the Depositary an opinion of
counsel to that effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent, or permit is required for
the Rights to be made available to holders of Depositary Receipts, the Company
agrees to use its best efforts to take the action to obtain the authorization,
consent, or permit sufficiently in advance of the expiration of the Rights to
enable the holders to exercise the Rights.
SECTION 4.04. Fixing of Record Date for Holders of Depositary
Receipts. Certain events necessitate setting a Record Date. Among those events
are: any cash dividend or cash redemption or other cash distribution becomes
payable, any distribution other than cash is made, or any rights, preferences,
or privileges are offered on the Class __ Preferred Stock, or the Depositary
receives notice of (i) any meeting at which holders of the Class __ Preferred
Stock are entitled to vote or of which holders of the Class __ Preferred Stock
are entitled to notice or (ii) any election on the part of the Company to redeem
any shares of the Class __ Preferred Stock. In any of those events the
Depositary shall fix a Record Date for the determination of the record holders
of Depositary Receipts who are entitled to participate with respect to the event
in question. The Record Date set by the Depositary shall be the same date as the
record date fixed by the Company with respect to the Class __ Preferred Stock.
The Depositary will then determine who are the holders of record of the
Depositary Receipts on the Record Date.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Class __ Preferred Stock are entitled to vote, the
Depositary shall promptly mail to the record holders of Depositary Receipts on
the Record Date a notice of the meeting by first class mail.
The Company will provide the Depositary with the actual notice to be
mailed. Each notice shall contain (i) the information that is contained in the
original notice of meeting, (ii) a statement that the holders of Depositary
Receipts at the close of business on the specified record date 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 Class __ Preferred
Stock represented by their respective Depositary Shares, and (iii) a brief
statement of the manner in which the instructions may be given.
Upon the written request of a record holder of a Depositary Receipt,
the Depositary will vote or cause to be voted the amount of Class __ Preferred
Stock evidenced by the Depositary Receipt in accordance with the instructions in
the request. To the extent any instructions request the voting of a fractional
interest of a share of Class __ Preferred Stock, the Depositary will aggregate
all the fractional interests from requests with the same voting instructions and
will vote the number of whole votes resulting from the aggregation in accordance
with the instructions. In the absence of specific instructions from the record
holder of a Depositary Receipt, the Depositary will abstain from voting to the
extent of the Class __ Preferred Stock evidenced by the Depositary Receipt. The
Depositary will not exercise discretion in voting any Class __ Preferred Stock.
SECTION 4.06. Redemptions. Whenever the Company elects to redeem
shares of Class __ Preferred Stock for cash in accordance with the Designating
Amendment, it will give the Depositary not less than 60 days' prior written
notice of the redemption price, the date fixed for redemption (the "cash
redemption date"), and the number of shares of Class __ Preferred Stock to be
redeemed. If there are any, the notice will include the amount of accrued and
unpaid dividends to the cash redemption date.
10
The Depositary will determine who are the record holders of the
Depositary Receipts to be redeemed on the Record Date. The Depositary will mail
notice of the redemption of Class __ Preferred Stock and the simultaneous
redemption of the Depositary Shares to those holders of record. The notices will
be sent by first class mail not less than 30 and not more than 60 days prior to
the cash redemption date. The notices will be addressed to the addresses of the
record holders as they appear on the records of the Depositary. Neither failure
to mail any notice to one or more record holders nor any defect in any notice
shall affect the sufficiency of the proceedings for redemption as to other
record holders. The Company will also cause notice of redemption to be published
in a newspaper of general circulation in The City of New York at least once a
week for two successive weeks commencing not less than 30 nor more than 60 days
prior to the cash redemption date.
The Company will provide the Depositary with the actual notice to be
mailed. Each notice will state: the cash redemption date; the cash redemption
price; the number of shares of Class __ Preferred Stock and Depositary Shares to
be redeemed; if fewer than all the Depositary Shares held by any record holder
are to be redeemed, the number of Depositary Shares held by that record holder
to be redeemed; the places where Depositary Receipts are to be surrendered for
payment of the cash redemption price; and that from and after the cash
redemption date dividends on the Class __ Preferred Stock represented by the
Depositary Shares to be redeemed will cease.
SECTION 4.07. Inspection of Reports. The Depositary will make
available for inspection by holders of Depositary Receipts at the Corporate
Office during normal business hours any reports and communications received from
the Company that are made generally available to the holders of the Class __
Preferred Stock. In addition, the Depositary will transmit certain notices and
reports to the holders of Depositary Receipts as provided in this Agreement.
SECTION 4.08. Notices, Reports, and Documents. Certain notices and
reports are required to be furnished by the Company to holders of the Class __
Preferred Stock. These requirements may arise under the law, the Certificate of
Incorporation, or the rules of any national securities exchange upon which the
Class __ Preferred Stock, the Depositary Shares, or the Depositary Receipts are
included for quotation or listed. The Company agrees that it will deliver to the
Depositary, and the Depositary will, promptly after receipt, transmit to the
record holders of Depositary Receipts, at their addresses in the Depositary's
books, copies of all required notices and reports. The delivery of required
notices will be at the Company's expense. In addition, the Depositary will
transmit to the record holders of Depositary Receipts at the Company's expense
any other documents requested by the Company.
If requested by the holder of any Depositary Receipt, the Depositary
will deliver to it a copy of this Deposit Agreement, the form of Depositary
Receipt, the Designating Amendment, and the form of Class __ Preferred Stock.
The Company will provide the Depositary with the number of copies of documents
the Depositary reasonably requests.
SECTION 4.09. Lists of Depositary Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary will 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
Depositary Receipts are registered on the books of the Depositary.
SECTION 4.10. Tax and Regulatory Compliance. The Depositary will be
responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding,
11
(iii) withholding 31% (or any withholding as may be required at the then
applicable rate) of dividends from eligible holders of Depositary Receipts, (iv)
mailing W-9 forms to new holders of Depositary 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 4.11. Withholding. Notwithstanding any other provision of
this Agreement, if the Depositary determines that any distribution in property
is subject to any tax that the Depositary is obligated by law to withhold, the
Depositary may dispose of all or a portion of that property in the amounts and
in the manner the Depositary deems necessary and practicable to pay the taxes,
including by public or private sale. The Depositary will distribute the net
proceeds of any sale or the balance of any property after deduction of the taxes
to the holders of Depositary Receipts entitled thereto in proportion to the
number of Depositary Shares held by each of them.
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 will maintain at the Corporate
Office facilities for the execution of Depositary Receipts. The Depositary will
maintain at the Corporate Office and at the offices of any Depositary's Agents
facilities for the delivery, transfer, surrender and exchange, split-up,
combination, and redemption of Depositary Receipts, and deposit and withdrawal
of Class __ Preferred Stock.
The Depositary will keep books at the Corporate Office for the
registration and transfer of Depositary Receipts. The books will be open for
inspection by the record holders of Depositary Receipts at all reasonable times
and as provided by applicable law. The Depositary may close the books, at any
time or from time to time, when deemed expedient by it in connection with the
performance of its duties under this Agreement.
If the Depositary Receipts, or the Depositary Shares, or the Class __
Preferred Stock represented by the Depositary Shares are listed on The New York
Stock Exchange or any other stock exchange, the Depositary may, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of the Depositary Receipts or Depositary Shares in accordance with
the requirements of the listing exchange. The Registrar may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. The Registrar may be the Depositary if so permitted by
the requirements of the listing exchange. If the Depositary Receipts, the
Depositary Shares, or the Class __ Preferred Stock are listed on one or more
other stock exchanges, the Depositary will, at the request and expense of the
Company, arrange the facilities for the delivery, transfer, surrender,
redemption, and exchange of the Depositary Receipts, the Depositary Shares, or
the Class __ Preferred Stock 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 will incur any liability
to any holder of any Depositary Receipt if their performance under this
Agreement is prevented or delayed by any provision of any present or future law
of the United States of
12
America or of any other governmental authority, or by any act of God or war or
other circumstance beyond the control of the relevant party.
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 will be subject to any
liability under this Agreement or any Depositary Receipt to holders of
Depositary Receipts other than from acts or omissions arising out of conduct
constituting negligence, bad faith, or willful misconduct in the performance of
their duties under this Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar, nor the
Company will be under any obligation to appear in, prosecute, or defend any
action, suit, or other proceeding that in its reasonable opinion may involve it
in expense or liability, unless indemnity reasonably satisfactory to it against
all expense and liability is furnished as often as may be required.
Neither the Depositary, any Depositary's Agent, any Registrar, nor the
Company will 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 holder of a Depositary Receipt or any other person believed by it in good
faith to be competent to give the information. The Depositary, any Depositary's
Agent, any Registrar, and the Company may each rely and will 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.
If the Depositary receives conflicting claims, requests, or
instructions from any holders of Depositary Receipts, on the one hand, and the
Company, on the other hand, the Depositary will be entitled to act on the
claims, requests, or instructions received from the Company.
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 Depositary 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. 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.
Neither the Depositary nor any Depositary's Agent is an "issuer" of
the securities under the federal securities laws or applicable state securities
laws. The Depositary and any Depositary's Agent are acting only in a ministerial
capacity as Depositary for the Class __ Preferred Stock. The Depositary agrees
to comply with all information reporting and withholding requirements applicable
to it under law or this 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 Class __ Preferred Stock, the
Depositary Shares, the Depositary Receipts (except for its countersignature),
the registration statement
13
pursuant to which the Shares are registered under the Securities Act, or any
other instruments relating to this Agreement, or as to the correctness of any
statement made therein or herein. However, the Depositary is responsible for its
representations in this Agreement and for the validity of any action taken or
required to be taken by the Depositary in connection with this Agreement.
The Company agrees that it will register the Class __ Preferred Stock
and the Depositary Shares in accordance with applicable securities laws.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may resign as Depositary at any time by
notice of its election to do so delivered to the Company. The resignation will
take effect upon the appointment of a successor depositary and its acceptance of
the appointment.
The Depositary may be removed by the Company at any time by notice of
removal delivered to the Depositary. The removal will take effect upon the
appointment of a successor depositary and its acceptance of the appointment.
If the Depositary resigns or is removed, the Company will, within 60
days after the delivery of the notice of resignation or removal, as the case may
be, appoint a successor depositary. The successor depositary shall be a bank or
trust company having its principal office in the United States of America and
having a combined capital and surplus of at least $50,000,000. If a successor
depositary has not been appointed in 60 days, the resigning Depositary may
petition a court of competent jurisdiction to appoint a successor depositary.
Every successor depositary will execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment under this
Agreement, and will then immediately become fully vested with all the rights,
powers, duties, and obligations of its predecessor, and for all purposes will be
the Depositary under this Agreement.
The predecessor, upon the written request of the Company, will
promptly execute and deliver an instrument transferring to its successor all
rights and powers of the predecessor under this Agreement, will duly assign,
transfer, and deliver all right, title, and interest in the Class __ Preferred
Stock and any moneys or property held under this Agreement to its successor, and
will deliver to its successor a list of the record holders of all outstanding
Depositary Receipts. Any successor depositary will promptly mail notice of its
appointment to the record holders of Depositary 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, will be a successor depositary without the execution or
filing of any document or any further act. That successor depositary may execute
the Depositary Receipts either in the name of the predecessor depositary or in
the name of the successor depositary.
SECTION 5.05. 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
Agreement and the Depositary Receipts, except for any liability arising out of
negligence, willful misconduct, or bad faith on the part of any of them. The
obligations of the Company set forth in this Section 5.05 will
14
survive any succession of any Depositary, Registrar, or Depositary's Agent and
termination of this Agreement.
SECTION 5.06. Fees, Charges, and Expenses. No charges and expenses
of the Depositary or any Depositary's Agent will be payable by any person,
except as provided in this Section 5.06. The Company will pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Agreement. The Company will also pay all fees and expenses of the Depositary in
connection with the initial deposit of the Class __ Preferred Stock and the
initial issuance of the Depositary Receipts, any redemption of the Class __
Preferred Stock at the option of the Company, and all withdrawals of the Class
__ Preferred Stock by holders of Depositary Shares.
If a holder of Depositary Receipts requests the Depositary to perform
duties not required under this Agreement, the Depositary will notify the holder
of the cost to perform as requested. The holder will be liable for the charges
and expenses related to the performance if it then elects to have the Depositary
perform. All other fees and expenses of the Depositary and any Depositary's
Agent and of any Registrar (including, in each case, fees and expenses of
counsel) incident to the performance of their respective obligations under this
Agreement will be promptly paid as previously agreed between the Depositary and
the Company. The Depositary will 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 Depositary Receipts and any
provision of this 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. No amendment that (i) materially and adversely
alters the rights of the holders of Depositary Receipts or (ii) would be
materially and adversely inconsistent with the rights of the Class __ Preferred
Stock pursuant to the Certificate of Incorporation will be effective unless the
amendment has been approved by the holders of at least two thirds of the
Depositary Shares then outstanding. No amendment may impair the right of any
holder of any Depositary Shares to surrender a Depositary Receipt with
instructions to the Depositary to deliver to the holder the Class __ Preferred
Stock (and any money and other property represented thereby), except in order to
comply with mandatory provisions of applicable law. Every holder of an
outstanding Depositary Receipt at the time any amendment becomes effective, by
continuing to hold the Depositary Receipt, consents and agrees to the amendment
and to be bound by this Agreement as amended.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company upon not less than 30 days' prior written notice to the Depositary if
(i) the termination is necessary to preserve the Company's status as a real
estate investment trust under the Internal Revenue Code of 1986, as amended (or
any successor) or (ii) the holders of a majority of the Depositary Shares then
outstanding consent to the termination. Upon termination the Depositary will
deliver or make available to each holder of a Depositary Receipt, upon surrender
of the Depositary Receipt, the number of whole or fractional shares of Class
__ Preferred Stock together with any other property held by the Depositary
evidenced by the Depositary Receipt. If any fractional shares of Class __
Preferred Stock would otherwise be due to the holder of a Depositary Receipt,
the holder will receive cash in lieu of the fractional share as provided in the
Designating Amendment.
15
Deposit Agreement
This Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares have been redeemed pursuant to Section 2.03,
(ii) [each share of Class __ Preferred Stock has been converted or exchanged as
described in Section 2.11, or (iii)] a final distribution on the Class __
Preferred Stock has been made in connection with any liquidation, dissolution,
or winding up of the Company, and the distribution has been distributed to the
holders of Depositary Receipts entitled thereto.
Upon the termination of this Agreement, the Company will be discharged
from all obligations under this Agreement except for its obligations to the
Depositary, any Depositary's Agent, and any Registrar under Section 5.05 and
Section 5.06.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Agreement may be executed in any
number of counterparts, and by each of the parties on separate counterparts,
each of which counterpart, when so executed and delivered, will be treated as an
original, but all counterparts taken together will constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile transmission will be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 7.02. Exclusive Benefits of Parties. This Agreement is for
the exclusive benefit of the parties and their respective successors, and will
not give any legal or equitable right, remedy, or claim to any other person
whatsoever.
SECTION 7.03. Invalidity of Provisions. If any one or more of the
provisions contained in this Agreement or in the Depositary Receipts is or
becomes invalid, illegal, or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions in this Agreement and
the Depositary Receipts shall in no way be affected.
SECTION 7.04. Notices. All notices to be given to the Company will
be in writing and will be duly given if personally delivered or sent by first
class mail, or by telegram or facsimile transmission confirmed by letter,
addressed to the Company at:
INMC Mortgage Holdings, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: ________________________
Telephone No. ________________________
Fax No. ________________________
or at any other address of which the Company will have notified the Depositary
in writing.
Any notices to be given to the Depositary will be in writing and will
be duly given if personally delivered or sent by first class mail, or by
telegram or facsimile transmission confirmed by letter, addressed to the
Depositary at the Corporate Office.
16
Any notices given to any record holder of a Depositary Receipt shall
be in writing and will be duly given if personally delivered or sent by first
class mail, or by telegram or facsimile transmission confirmed by letter,
addressed to the record holder at the address of the record holder as it appears
on the books of the Depositary or, if the holder has filed with the Depositary
in a timely manner a written request that notices intended for the holder be
mailed to some other address, at the address designated in the request.
Delivery of a notice sent by first class mail or by telegram or
facsimile transmission will be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission ) is deposited, postage prepaid, in a post office
letter box, and will be conclusively presumed to have been received on the
second business day after being so posted in the case of notice sent by mail,
and on the day sent (or the next business day if that day is not a business day)
in the case of notice by telegram or facsimile transmission. The Depositary or
the Company may, however, act upon any telegram or facsimile transmission
received by it from the other or from any holder of a Depositary Receipt,
notwithstanding that the telegram or facsimile transmission has not subsequently
been confirmed by letter.
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 Agreement, and may at any time appoint additional
Depositary's Agents, and vary or terminate the appointment of the Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Depositary Receipts Are Parties. The
holders of Depositary Receipts from time to time become parties to this
Agreement and will be bound by all of the terms and conditions of this Agreement
and of the Depositary Receipts by acceptance of delivery of the Depository
Receipt.
SECTION 7.07. Governing Law. This Agreement and the Depositary
Receipts and all rights, duties, and obligations hereunder and thereunder will
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 New York State.
SECTION 7.08. Inspection of Deposit Agreement and Designating
Amendment. Copies of this Agreement and the Designating Amendment will be filed
with the Depositary and the Depositary's Agents and will be open to inspection
during business hours at the Corporate Office and the respective offices of any
Depositary's Agents by any holder of a Depositary Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Agreement have been inserted for convenience only and are not to be
regarded as a part of this Agreement or to have any bearing upon the meaning or
interpretation of any provision contained in this Agreement.
17
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written and all holders of Depositary Receipts
will become parties to this Agreement by and upon acceptance by them of delivery
of Depositary Receipts.
INMC MORTGAGE HOLDINGS, INC.
By:___________________________________________
Authorized Officer
Attest:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
By:___________________________________________
Authorized Signatory
Attest:
18
The Company will furnish to any holder of this Certificate, on request
and without charge, a full statement of the information with respect to the
designations and any preferences, conversion, and other rights, voting powers,
restrictions, limitations as to dividends and other distributions,
qualifications, and terms and conditions or redemption or the stock of each
class which the Company has authority to issue and, if the Company is authorized
to issue any preferred or special class in series, (i) the differences in the
relative rights and preferences between the shares of each series to the extent
set, and (ii) the authority of the Board of Directors to set the rights and
preferences of subsequent series. This summary does not purport to be complete
and is subject to and qualified in its entirety by reference to the Certificate
of Incorporation of the Company (the "Certificate of Incorporation"), a copy of
which will be sent without charge to each stockholder who requests one. The
request should be made to the Secretary of the Company at its principal office
or to the Depositary.
The Depositary Shares evidenced by this Depositary Receipt are subject
to restrictions on ownership and transfer for the purpose of the Company's
maintenance of its status as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended. Except as otherwise provided pursuant to the
Certificate of Incorporation of the Company, no person may beneficially own or
constructively own Depositary Shares representing Class __ Preferred Stock in
excess of 9.8% of the outstanding Class __ Preferred Stock, with certain further
restrictions and exceptions set forth in the Certificate of Incorporation. Any
person who attempts to beneficially own or constructively own Depositary Shares
representing Class __ Preferred Stock in excess of the above limitation must
immediately notify the Company. All capitalized terms in this legend have the
meanings set forth in the Certificate of Incorporation. Transfers in violation
of the restrictions described above will be void ab initio.
[FORM OF FACE OF DEPOSITARY RECEIPT]
DRC-
CERTIFICATE FOR NOT MORE THAN __________ DEPOSITARY SHARES
CUSIP
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING ____ OF A SHARE OF
______% CLASS __ PREFERRED STOCK, PAR VALUE $0.01 PER SHARE, OF
INMC MORTGAGE HOLDINGS, INC.
(a Delaware corporation)
_________________________________, as depositary (the "Depositary"),
hereby certifies that is the registered owner of
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing ____
of one share of _____% Class __ Preferred Stock, par value $0.01 per share (the
"Stock"), of INMC Mortgage Holdings, Inc., a Delaware corporation (the
"Company"), on deposit with the Depositary, subject to the terms and entitled to
the benefits of the Deposit Agreement dated as of _____________ (the
"Deposit Agreement"), among the Company, the Depositary, and the holders from
time to time of Depositary Receipts for Depositary Shares. By accepting this
Depositary Receipt, the holder becomes a party to and agrees to be bound by all
of the provisions of the Deposit Agreement. This Depositary Receipt will not
be valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it has been executed by the Depositary by the manual
or facsimile signature of a duly authorized officer and, if a Registrar for the
Depositary Receipts (other than the Depositary) has been appointed, by the
manual signature of a duly authorized officer of the Registrar.
Dated:
[COUNTERSIGNED: _______________________________
AS DEPOSITARY, TRANSFER AGENT,
AND REGISTRAR
___________________________] By: ___________________________________
By Authorized Signatory
[FORM OF REVERSE OF DEPOSITARY RECEIPT]
INMC MORTGAGE HOLDINGS, INC.
INMC MORTGAGE HOLDINGS, INC. WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED
HOLDER OF A DEPOSITARY RECEIPT WHO REQUESTS ONE A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE DESIGNATING AMENDMENT WITH RESPECT TO THE CLASS __ PREFERRED
STOCK OF INMC MORTGAGE HOLDINGS, INC. ANY REQUEST SHOULD BE MADE TO THE
SECRETARY OF THE COMPANY OR TO THE DEPOSITARY NAMED ON THE FACE OF THIS
DEPOSITARY RECEIPT.
________________________________________________
The following abbreviations when used in the instructions on the face of this
receipt will 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
--------------------------
Depositary 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.
Dated
--------------------------- ---------------------------------------
NOTICE: The signature to the assignment
must correspond with the name as written
upon the face of this Depositary Receipt
in every particular, without alteration
or enlargement or any change whatever.
