EXHIBIT 4.18
DEPOSIT AGREEMENT
dated as of __________, 199__
among
PROVIDIAN FINANCIAL CORPORATION
a Delaware corporation,
_____________, a [national banking association],
and the holders
from time to time of the Depositary Shares
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of _________ Preferred Stock,
Series __, $.01 par value, of PROVIDIAN FINANCIAL CORPORATION, with the
Depositary (as hereinafter defined) for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts (as hereinafter defined)
evidencing Depositary Shares (as hereinafter defined) in respect of the Stock
(as hereinafter defined) so deposited:
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
1.1 "CERTIFICATE" shall mean the certificate of designations filed with
the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the company.
1.2 "COMPANY" shall mean Providian Financial Corporation, a Delaware
corporation, and its successors.
1.3 "DEPOSIT AGREEMENT" shall mean this Deposit Agreement, as amended
or supplemented from time to time.
1.4 "DEPOSITARY" shall mean ________________, a [national banking
association], and any successor as Depositary hereunder.
1.5 "DEPOSITARY SHARES" shall mean Depositary Shares, each representing
a one-[half] interest in a share of the Stock and evidenced by a Receipt.
1.6 "DEPOSITARY'S AGENT" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
1.7 "DEPOSITARY'S OFFICE" shall mean the office of the Depositary at
_____________, _____________, _____________, at which at any particular time its
depositary receipt business shall be administered.
1.8 "RECEIPT" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form.
1.9 "RECORD HOLDER" as applied with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
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1.10 "REGISTRAR" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
1.11 "STOCK" shall mean shares of the Company's ______________
Preferred Stock, Series __, $.01 par value.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
2.1 FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall be
engraved or printed or lithographed and shall be substantially in the form set
forth in Exhibit A annexed to this Deposition 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 2.2, shall execute and deliver
temporary Receipts which are 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 an office described in the third paragraph of
Section 2.2, 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 Stock,
as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, that such signature may
be a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer 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 manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
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 Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the 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 Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.4, 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 distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
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2.2 DEPOSIT OF STOCK; EXECUTION AND DELIVERY RECEIPTS IN RESPECT
THEREOF. Subject to the terms and conditions of this Deposit Agreement, the
Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, 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 all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with 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 number of
Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock so deposited on the books of the Company in the name of the Depositary or
its nominee, 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, a Receipt or Receipts for the number of
Depositary Shares relating to the Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Depositary's Office or such
other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
shares of Stock.
2.3 REDEMPTION OF STOCK. Whenever the Company shall elect to redeem
shares of Stock in accordance with the provisions of the Certificate, it shall
(unless otherwise agreed in writing with the Depositary) mail notice to the
Depositary of such proposed redemption, by first class mail, postage prepaid not
less than 40 or more than 70 days prior to the date fixed for redemption of
Stock in accordance with Section [3(b)] of the Certificate. On the date of such
redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed, plus any accrued
and unpaid dividends thereon, the Depositary shall redeem the Depositary Shares
relating to such Stock. The Depositary shall mail notice of such redemption and
the proposed simultaneous redemption of the number of Depositary Shares relating
to the Stock to be redeemed, by first-class mail, postage prepaid, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares (the "Redemption Date"), to the Record Holders of
the Depositary Shares to be so redeemed, at the addresses of such holders as
they 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 notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accrue and accumulate at the close of business on such Redemption Date. In
case less than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by lot, pro rata or such
other method as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of 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
Depositary Shares so called for redemption shall cease to accrue and accumulate,
the Depositary Shares being redeemed from such proceeds shall be deemed no
longer to be outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate and, upon surrender in
accordance with such notice of the Receipts evidencing any such Depositary
Shares (properly endorsed
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or assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed by the Depositary at a redemption price per Depositary
Share equal to the proportionate part of the redemption price per share paid in
respect of the shares of Stock plus all money and other property, if any, paid
with respect to such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have accumulated on
the shares of Stock to be so redeemed and have not theretofore been paid.
If less than all 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 the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
2.4 REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall register on its books
from time to time transfers of Depositary Shares upon any surrender of the
Receipt or Receipts evidencing such Depositary Shares by the holder in person or
by duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer. Thereupon the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the person entitled thereto.
2.5 SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF DEPOSITARY
SHARES AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole shares
of Stock underlying such Depositary Shares of whole shares of Stock underlying
such Depositary Shares and all money and other property, if any, underlying such
Depositary Shares by surrendering Receipts evidencing such Depositary Shares at
the Depositary's Office or at such other offices as the Depositary may designate
for such withdrawals. Thereafter, 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 Stock and all
money and other property, if any, underlying the Depositary Shares so
surrendered for withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive Receipts
evidencing Depositary Shares therefor.If a Receipt delivered by a holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares relating to other than a number of whole shares of Stock, the
Depositary shall at the same time, in addition to such number of whole shares of
Stock and such money and other property, if any, to be so withdrawn, deliver to
such holder, or (subject to Section 3.2) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Stock and
money and other property being withdrawn may be made by delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate.
If the 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 Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of 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 Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the Depositary
at the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
2.6 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
EXCHANGE OF RECEIPTS. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender or exchange of any
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Receipt, the Depositary, any of the Depositary's Agents or the Company may
require 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 charges or expenses payable by the holder of a Receipt pursuant to
Section 5.7, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
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 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.
2.7 LOST RECEIPTS, ETC. In case any Receipt shall be mutilated,
destroyed, 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, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, or the authenticity thereof and of his or her ownership thereof
and (ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
2.8 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 all Receipts so canceled.
ARTICLE 3
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any holder of a
Depositary Share may be required from time to time to file such proof of
residence, or other matters 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 the delivery, or delay the registration of transfer, redemption or
exchange, of any Depositary Share or the withdrawal of any Stock underlying
Depositary Shares or 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 or such certificates are executed or such representations
and warranties are made.
3.2 PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders of
Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property relating to such
Depositary Shares and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Depositary Share remaining liable for any deficiency.
3.3 WARRANTY AS TO STOCK. The Company hereby represents and warrants
that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
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ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall receive any cash
dividend or other cash distribution on the Stock, the Depositary shall, subject
to Sections 3.1 and 3.2, distribute to the Record Holders of Depositary Shares
on the record date fixed pursuant to Section 4.4 such amounts of such dividend
or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares held by such holders; provided, however,
that in case the Company or the Depositary shall be required to withhold and
shall withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. 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 Depositary Shares 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 Depositary
Shares then outstanding.
4.2 DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary shall
receive any distribution other than cash on the Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to the Record Holders of Depositary
Shares on the record date fixed pursuant to Section 4.4 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 held by such holders,
in any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution. If in the opinion of the Depositary 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 or governmental charge) 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 Sections 3.1 and 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel to
the effect that such securities have been registered under the Securities Act of
1933 or do not need to be registered.
4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company
shall at any time offer or cause to be offered to the persons in whose names
Stock is recorded 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 Depositary Shares in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Depositary Shares by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Depositary Shares who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges 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 Sections 3.1 and 3.2, be distributed
by the Depositary to the Record Holders of Depositary Shares entitled thereto as
provided by Section 4.1 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 an opinion of counsel to the
effect that such rights, preferences or privileges have been registered under
the Securities Act of 1933 or do not need to be registered.
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If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Depositary Shares to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the Depositary
that it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities to use its best
efforts to 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 holder of Depositary Shares 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 provision of such Act.
If any other action under the laws 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 the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will 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.
4.4 NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR HOLDERS OF
DEPOSITARY SHARES. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote, or of which holders of Stock are entitled
to notice, 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 Stock) for the determination of the holders of Depositary Shares who shall
be entitled to receive a distribution in respect of such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting, or who
shall be entitled to receive notice of such meeting.
4.5 VOTING RIGHTS. Upon receipt of notice of any meeting at which the
holders of the Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the Record Holders of Depositary Shares a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.4, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting or
consent instructions are received. The Company hereby agrees to take all action
which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence of
specific instructions from the holder of a Depositary Share, the Depositary will
abstain from voting (but, at its discretion, not from appearing at any meeting
with respect to such Stock unless directed to the contrary by the holders of all
the Depositary Shares) to the extent of the Stock underlying the Depositary
Shares.
4.6 CHANCES AFFECTING DEPOSITED SECURITIES AND RECLASSIFICATIONS.
Recapitalizations. etc. Upon any change in par or liquidation value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion, with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in (A) the fraction of an interest in one
share of Stock underlying one Depositary Share and (B) the ratio of the
redemption price per Depositary Share to the redemption price of a share of the
Stock, in each case as may be necessary fully to reflect the effects of such
change in par or liquidation value, split-up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion of or in respect of such Stock. In any such case
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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 securities.
4.7 DELIVERY REPORTS. The Depositary will forward to Record Holders of
Receipts, at their respective addresses appearing in the Depositary's books, all
notices, reports and communications received from the Company which are
delivered to the Depositary and which the Company is required to furnish to the
holders of Stock or Receipts.
4.8 LIST OF HOLDERS. Promptly upon request from time to time by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of Depositary Shares of all persons in whose names
Depositary Shares are registered on the books of the Depositary or Registrar, as
the case may be.
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
5.1 MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Offices, or at any Registrar's Office, at
which the Depositary shall have complete access to all books and records
maintained on the Company's behalf, facilities for the execution and delivery,
surrender and exchange of Receipts and the registration and registration of
transfer of Depositary Shares, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided, that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares.
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 Stock
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. 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
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
5.2 PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARV'S AGENTS, ANY REGISTRAR OR THE COMPANY. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Depositary Share 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, any Depositary's Agent or any Registrar, by reason of any provision,
present or future, of the Company's Certificate of Incorporation (including the
Certificate) or by reason of any event of force majeure or war or other
circumstance beyond the control of the relevant party, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing which the terms of this Deposit
-8-
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Depositary Share (i) by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing which the terms of
this Deposit Agreement provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement except, in case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the gross negligence
or willful misconduct of the party charged with such exercise or failure to
exercise.
5.3 OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, ANY
REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Depositary Shares other
than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor 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
from any person presenting Stock for deposit, any holder of a Depositary Share
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 to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote, as long as any such action or nonaction is in good faith. 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 Deposit Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
5.4 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 so to do 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 the Depositary acting hereunder shall at any time 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 in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of 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
-9-
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 execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the 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 Depositary Shares. Any successor Depositary shall promptly mail
notice of its appointment to the Record Holders of Depositary Shares.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
5.5 CORPORATE NOTICES AND REPORTS. The Company agrees that it will
transmit to the Depositary all notices, reports and communications (including,
without limitation, financial statements) required by law, the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company's Certificate of Incorporation (including
the Certificate) to be furnished by the Company to holders of the Stock.
5.6 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify the
Depositary, any Depositary's Agent and any Registrar against, and hold each of
them harmless from, any loss, liability or expense (including the costs and
expenses of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Deposit Agreement and the Depositary Shares (a)
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Depositary Shares or the Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent.
5.7 CHARGES AND EXPENSES. The Company shall pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Receipts, any redemption of the Stock at the option of the Company and any
withdrawals of Stock by holders of Depositary Shares. All other transfer and
other taxes and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of a Depositary Share, the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
reasonable charges and expenses of the Depositary, any Depositary's Agent
hereunder and any Registrar (including, in each case, reasonable fees and
expenses of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
once every three months or at such other intervals as the Company and the
Depositary may agree.
ARTICLE 6
AMENDMENT AND TERMINATION
6.1 AMENDMENT. The form of the Receipts and any provisions 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 which they may deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the existing holders of Depositary
Shares shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding. Each
holder of an outstanding Depositary Share at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Depositary Share, to
consent and agree to such amendment and to be bound by this Deposit Agreement as
amended thereby.
-10-
6.2 TERMINATION. This Deposit Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed and any accumulated and unpaid dividends on the Stock
represented by the Depositary Shares, together with all other moneys and
property, if any, to which holders of the related Receipts are entitled under
the terms of such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision therefor has been
duly made pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the 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 pursuant to Section 4.1 or 4.2, as
applicable.
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 Agents and any Registrar under
Sections 5.6 and 5.7.
ARTICLE 7
MISCELLANEOUS
7.1 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.
7.2 EXCLUSIVE BENEFIT 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.
7.3 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.
7.4 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 telegram or telex confirmed by
letter, addressed to the Company at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 to the attention of ________________, or at any
other address of which the Company shall have notified the Depositary in
writing.
Any and all 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 confirmed by
letter, addressed to the Depositary at the Depositary's office, at
______________, ______________, _______________, or at any other address of
which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary
Share 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 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 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 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 message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Depositary Share, notwithstanding that such
telegram or telex message shall not subsequently be confirmed by letter or as
aforesaid.
-11-
7.5 DEPOSITARY'S AGENTS. The Depositary may from time to time, with the
prior approval of the Company, 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.
7.6 HOLDERS OF RECEIPTS ARE PARTIES. The holders of Depositary Shares
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts evidencing such
Depositary Shares by acceptance of delivery thereof.
7.7 GOVERNING LAW. THIS DEPOSIT AGREEMENT AND RECEIPTS AND ALL RIGHTS
HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF [NEW YORK].
7.8 INSPECTION OF 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 Depositary's of flee and the
respective of flees of the Depositary's Agents, if any, by any holder of a
Depository Share.
7.9 HEADINGS. The headings of articles and sections in this Deposit
Agreement and in the form of Receipt set forth in Exhibit A hereto have been
inserted for convenience only and are not to be regarded as part of this Deposit
Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders or Depositary Shares shall become parties hereto by and upon a
acceptance by them of delivery of Receipts evidencing such Depositary Shares and
issued in accordance with the terms hereof.
PROVIDIAN FINANCIAL CORPORATION
By
--------------------------------------
Title
-----------------------------------
[NAME OF DEPOSITORY]
By
--------------------------------------
Title
-----------------------------------
-12-
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK
PROVIDIAN FINANCIAL CORPORATION
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in the City of _____________
___________________, as Depositary, (the "Depositary"), hereby
certifies that ____________ is the registered owner of _________________
Depositary Shares ("Depositary Shares"), each Depositary Share representing
_______________) of one share of ______________ Preferred Stock, Series __, par
value $.01 per share (the "Stock"), of Providian Financial Corporation, 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
__________, 199__ (the "Deposit Agreement", between the Company, the Depositary
and all holders from time to time of Depositary Receipts. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the term and conditions of the Deposit Agreement. This Depositary 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 signature of a duly authorized officer or, if executed in
facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated ________________ DEPOSITARY
By
------------------------------------
Title
---------------------------------
REGISTRAR
By
------------------------------------
Title
---------------------------------
A-1
[GENERAL FORM OF REVERSE OF RECEIPT]
Providian Financial Corporation will furnish without charge to each
receiptholder who so requests a copy of the Deposit Agreement and a statement or
summary of the powers, designations, preferences and relative, participating,
option or other special rights of each class of stock or series thereof which
Providian Financial Corporation is authorized to issue and the qualifications,
limitations or restrictions of such preferences and/or rights. Any such request
is to be addressed to the Secretary of Providian Financial Corporation
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right survivorship and not as tenants in
common UNIF GIFT MIN ACT - ____________ Custodian ______________
(Cust) (State)
Additional abbreviations may also be used though not in the above list.
For value received, ____________________________________ hereby
sell(s), assign(s) and transfer(s) onto __________________________ (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 all
rights thereunder, and do hereby irrevocably constitute and appoint
_________________ Attorney to transfer said Depositary Shares on the books of
the within-named Depositary with full power of substitution in the premises.
Dated ___________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of this instrument in every particular, without alteration
or enlargement or any change whatever.
A-2
