DEPOSIT AGREEMENT among Jackson Financial Inc. and EQUINITI TRUST COMPANY, as Depositary, Dividend Disbursement Agent, Transfer Agent and Registrar, and THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN Dated as of March 13, 2023
Exhibit 4.1
among
Xxxxxxx Financial Inc.
and
EQUINITI TRUST COMPANY,
as Depositary, Dividend Disbursement Agent, Transfer Agent and Registrar,
and
THE HOLDERS FROM TIME TO TIME OF THE
DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of March 13, 2023
TABLE OF CONTENTS
| Page | ||
| Article I | ||
| Defined Terms | ||
| Section 1.1 | Definitions. | 1 |
| Article II | ||
| Form of Receipts, Deposit of the Preferred Stock, Execution and Delivery, Transfer, Surrender and Redemption of Receipts | ||
| Section 2.1 | Form and Transfer of Receipts. | 3 |
| Section 2.2 | Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect Thereof. | 4 |
| Section 2.3 | Registration of Transfer of Receipts. | 4 |
| Section 2.4 | Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Preferred Stock. | 5 |
| Section 2.5 | Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts. | 6 |
| Section 2.6 | Lost Receipts, etc. | 6 |
| Section 2.7 | Cancellation and Destruction of Surrendered Receipts. | 6 |
| Section 2.8 | Redemption of Preferred Stock. | 6 |
| Section 2.9 | Receipts Issuable in Global Registered Form. | 7 |
| Article III | ||
| Certain Obligations of Holders of Receipts and the Corporation | ||
| Section 3.1 | Filing Proofs, Certificates and Other Information. | 8 |
| Section 3.2 | Payment of Taxes or Other Governmental Charges. | 8 |
| Article IV | ||
| The Deposited Securities; Notices | ||
| Section 4.1 | Cash Distributions | 9 |
| Section 4.2 | Distributions Other than Cash, Rights, Preferences or Privileges. | 10 |
| Section 4.3 | Subscription Rights, Preferences or Privileges. | 10 |
| Section 4.4 | Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts. | 11 |
| Section 4.5 | Voting Rights. | 11 |
| Section 4.6 | Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc. | 12 |
| Section 4.7 | Delivery of Reports. | 12 |
| Section 4.8 | Lists of Receipt Holders. | 12 |
| Section 4.9 | Withholding. | 12 |
| Article V | ||
| The Depositary, the Depositary’s Agents, the Registrar and the Corporation | ||
| Section 5.1 | Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. | 12 |
| Section 5.2 | Prevention of or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Corporation. | 13 |
| Section 5.3 | Obligations of the Depositary, the Depositary’s Agents, the Registrar, Transfer Agent and the Corporation. | 13 |
| Section 5.4 | Resignation and Removal of the Depositary; Appointment of Successor Depositary. | 15 |
| Section 5.5 | Corporate Notices and Reports. | 16 |
| Section 5.6 | Indemnification by the Corporation. | 17 |
| Section 5.7 | Fees, Charges and Expenses. | 17 |
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| Article VI | ||
| Amendment and Termination | ||
| Section 6.1 | Amendment. | 17 |
| Section 6.2 | Termination. | 18 |
| Article VII | ||
| Miscellaneous | ||
| Section 7.1 | Counterparts. | 18 |
| Section 7.2 | Exclusive Benefit of Parties. | 18 |
| Section 7.3 | Invalidity of Provisions. | 18 |
| Section 7.4 | Notices. | 18 |
| Section 7.5 | Depositary’s Agents. | 19 |
| Section 7.6 | Appointment of Transfer Agent, Registrar, Dividend Disbursement Agent and Redemption Agent in Respect of Receipts and Preferred Stock. | 19 |
| Section 7.7 | Holders of Receipts are Parties. | 19 |
| Section 7.8 | Governing Law. | 20 |
| Section 7.9 | Inspection of Deposit Agreement. | 20 |
| Section 7.10 | Headings. | 20 |
| Section 7.11 | Confidentiality. | 20 |
| Section 7.12 | Further Assurances. | 20 |
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THIS DEPOSIT AGREEMENT, dated as of March 13, 2023 (as amended or supplemented from time to time in accordance with the terms hereof, this “Agreement”), among Xxxxxxx Financial Inc., a Delaware corporation (the “Corporation”), EQUINITI TRUST COMPANY, as Depositary, Dividend Disbursement Agent, Transfer Agent and Registrar, and the holders from time to time of the Receipts (as defined below).
WHEREAS, it is desired to provide, as hereinafter set forth in this Agreement, for the deposit of shares of the Fixed-Rate Reset Noncumulative Perpetual Preferred Stock, Series A, $1.00 par value per share, $25,000 liquidation preference per share (“Preferred Stock”), of the Corporation from time to time with the Depositary for the purposes set forth in this Agreement and for the issuance hereunder of Receipts evidencing Depositary Shares (as defined herein) in respect of the shares of Preferred Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A attached hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows:
Article I
Defined Terms
Section 1.1 Definitions.
The following definitions shall for all purposes, unless otherwise indicated, apply to the respective terms used in this Agreement:
“Affiliate” shall mean, with respect to any Person or entity, any Person or entity directly or indirectly controlling, controlled by, or under common control with, such other Person or entity. For the purpose of this definition, “controlling,” “controlled by” or “under common control with” mean the ownership, direct or indirect, of the power to direct or cause the direction of the operation or management and policies of a Person or entity, whether through the ownership or control of voting interests, by contract or otherwise.
“Agreement” shall have the meaning set forth in the preamble hereto.
“Certificate of Designations” shall mean the Certificate of Designations filed with the Secretary of State of the State of Delaware establishing the Preferred Stock as a series of preferred stock of the Corporation and setting forth the rights, preferences and privileges thereof, as filed with the Secretary of State of the State of Delaware on March 10, 2023, and as such certificate may be amended or restated from time to time.
“Corporation” shall have the meaning set forth in the preamble hereto.
“Depositary” shall mean Equiniti Trust Company and any successor as Depositary hereunder.
“Depositary Shares” shall mean the depositary shares, each representing a one-one thousandth (1/1,000th) fractional interest in one share of Preferred Stock, and evidenced by a Receipt.
“Depositary’s Agent” shall mean an agent appointed by the Depositary pursuant to Section 7.5.
“Depositary’s Office” shall mean the office of the Depositary at which at any particular time its depositary receipt business shall be administered, which at the date of this Agreement is located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxxxx, XX 00000.
“Dividend Disbursement Agent” shall have the meaning set forth in Section 4.1.1.
“Distribution Date” shall mean the date on which Equiniti Trust Company, as Dividend Disbursement Agent, or any successor appointed by the Corporation as herein provided, is to distribute any cash dividend or other cash distribution on Preferred Stock to Record Holders of Receipts in accordance with 4.1.1.
“DTC” shall mean The Depository Trust Company.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Exchange Event” shall mean with respect to any Global Registered Receipt:
(1) (A) the Global Receipt Depository which is the Holder of such Global Registered Receipt notifies the Corporation that it is no longer willing or able to properly discharge its responsibilities under any Letter of Representations or that it is no longer in good standing or registered as a clearing agency under the Exchange Act, and (B) the Corporation has not appointed a qualified successor Global Receipt Depository within ninety (90) calendar days after the Corporation received such notice, or
(2) the Corporation in its sole discretion notifies the Depositary in writing that the Receipts or portion thereof issued or issuable in the form of one or more Global Registered Receipts shall no longer be represented by such Global Registered Receipt.
“Funds” shall have the meaning set forth in Section 4.1.2.
“Global Receipt Depository” shall mean, with respect to any Receipt issued hereunder, DTC or such other entity designated as Global Receipt Depository by the Corporation in, or pursuant to, this Agreement, which entity must be, to the extent required by any applicable law or regulation, a clearing agency registered under the Exchange Act.
“Global Registered Receipt” shall mean a global registered Receipt registered in the name of a nominee of the Global Receipt Depository.
“Late-Day Funding” shall have the meaning set forth in Section 4.1.2.
“Letter of Representations” shall mean any applicable agreement among the Corporation, the Depositary and a Global Receipt Depository with respect to such Global Receipt Depository’s rights and obligations with respect to any Global Registered Receipt, as the same may be amended, supplemented, restated or otherwise modified from time to time, and any successor agreement thereto.
“Moody’s” shall have the meaning set forth in Section 4.1.2.
“NYSE” shall mean the New York Stock Exchange LLC.
“Person” shall mean any natural person, partnership, joint venture, firm, corporation, limited liability company, limited liability partnership, unincorporated association, trust or other entity, and shall include any successor (by merger or otherwise) of the foregoing.
“Preferred Stock” shall have the meaning set forth in the recitals hereto.
“Receipt” shall mean one of the depositary receipts issued hereunder, substantially in the form set forth as Exhibit A hereto, whether in definitive or temporary form, and evidencing the number of Depositary Shares held of record by the Record Holder of such Depositary Shares.
“Record Holder” or “Holder” as applied to a Receipt shall mean the Person in whose name such Receipt is registered on the books of the Depositary maintained for such purpose.
“Redemption Date” shall have the meaning set forth in Section 2.8.1.
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“Registrar” shall mean Equiniti Trust Company or such other successor bank or trust company which shall be appointed by the Corporation to register ownership and transfers of Receipts or the deposited shares of Preferred Stock, as the case may be, as herein provided, and if a successor Registrar shall be so appointed, references herein to “the books” of or maintained by the Depositary shall be deemed, as applicable, to refer as well to the register maintained by such Registrar for such purpose.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Signature Guarantee” shall have the meaning set forth in Section 2.3.
“S&P” shall have the meaning set forth in Section 4.1.2.
“Transfer Agent” shall mean Equiniti Trust Company or such other successor bank or trust company which shall be appointed by the Corporation to transfer the Receipts or the deposited shares of Preferred Stock, as the case may be, as herein provided.
Article II
Form of Receipts, Deposit of the Preferred Stock, Execution and Delivery, Transfer, Surrender and Redemption of Receipts
Section 2.1 Form and Transfer of Receipts.
2.1.1 The definitive Receipts shall be substantially in the form set forth in Exhibit A attached to this Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Corporation, delivered in compliance with Section 2.2, shall be authorized and instructed to, and shall execute and deliver temporary Receipts which may be printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Persons executing such Receipts may determine, as evidenced by their execution of such Receipts. If temporary Receipts are issued, the Corporation and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at the Depositary’s Office or at such other place or places as the Depositary shall determine, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary is hereby authorized and instructed to, and 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 registered in the name (and only in the name) of the Holder of the temporary Receipt(s); provided, that the Depositary has been provided with all necessary information that it may reasonably request in order to execute and deliver such definitive Receipts. Such exchange shall be made at the Corporation’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 Agreement as definitive Receipts, with respect to Depositary Shares, Preferred Stock and otherwise.
2.1.2 Any Receipt to be executed by the Depositary pursuant to this Agreement shall be executed by the Depositary by electronic means or by the manual or facsimile signature, in each case, of a duly authorized officer of the Depositary. No Receipt shall be entitled to any benefits under this Agreement or be valid or obligatory for any purpose unless it shall have been executed by electronic means or by the manual or facsimile signature, in each case, of a duly authorized officer of the Depositary or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by electronic means or by the manual or facsimile signature, in each case, of a duly authorized officer of such Registrar. The Depositary shall record on its books each Receipt so signed and delivered as hereinafter provided.
2.1.3 Receipts shall be in denominations of any number of whole Depositary Shares. All Receipts shall be dated the date of their issuance.
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2.1.4 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 Agreement, all as may be reasonably required by the Depositary and approved by the Corporation or required to comply with any applicable law or any regulation thereunder or with the rules and regulations of the NYSE or any other securities exchange upon which Preferred Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipt is subject.
2.1.5 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 of such Receipt with the same effect as if such Receipt were a negotiable instrument; provided, however, that until transfer of any particular Receipt shall be registered on the books of the Depositary as provided in Section 2.3, 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 Agreement and for all other purposes.
Section 2.2 Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect Thereof.
2.2.1 Subject to the terms and conditions of this Agreement, the Corporation may from time to time deposit shares of Preferred Stock under this Agreement by delivery to the Depositary, including via direct registration for shares of Preferred Stock in uncertificated form, for such shares of Preferred Stock to be deposited (or in such other manner as may be agreed to by the Corporation and the Depositary), properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form reasonably satisfactory to the Depositary, together with (i) all such certifications as may be reasonably required by the Depositary pursuant to this Agreement and (ii) if applicable, an instruction letter from the Corporation authorizing the Depositary to register such shares of Preferred Stock in uncertificated form by direct registration, each in form reasonably satisfactory to the Depositary, and together with a written order of the Corporation 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 evidencing in the aggregate the number of Depositary Shares representing such deposited shares of Preferred Stock.
2.2.2 The shares of Preferred Stock that are deposited pursuant to this Section 2.2 shall be held by the Depositary at the Depositary’s Office or at such other place or places as the Depositary shall determine. The Depositary shall not lend any shares of Preferred Stock deposited hereunder.
2.2.3 Upon receipt by the Depositary of shares of Preferred Stock deposited in accordance with the provisions of this Section 2.2, together with the other documents required as above specified, and upon recordation of the shares of Preferred Stock on the books of the Corporation (or its duly appointed transfer agent) by the Transfer Agent in the name of the Depositary, the Depositary, subject to the terms and conditions of this 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 Section 2.2.1, a Receipt or Receipts evidencing in the aggregate the number of Depositary Shares representing the shares of Preferred Stock so deposited and registered in the name of such Person or Persons or in such name or names as may be ordered by such Person or Persons, as applicable. 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.
Section 2.3 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Agreement, the Depositary shall register on its books from time to time transfers of Receipts upon any surrender thereof by the Holder in person or by duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer or endorsement, including a guarantee of the signature thereon by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the Transfer Agent (a “Signature Guarantee”), together with evidence of the payment of any taxes or charges as may be required by law. 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.
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Section 2.4 Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Preferred Stock.
2.4.1 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 the receipt by the Depositary of all other necessary information and documents, and subject to the terms and conditions of this Agreement, the Depositary shall execute a new Receipt or Receipts in the authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered, and shall deliver such new Receipt or Receipts to or upon the order of the Holder of the Receipt or Receipts so surrendered.
2.4.2 Any Holder of a Receipt or Receipts may withdraw the number of whole shares of Preferred Stock and all money and other property, if any, represented thereby by surrendering such Receipt or Receipts at the Depositary’s Office or at such other offices as the Depositary may designate for such withdrawals; provided, however, that a Holder of a Receipt or Receipts may not withdraw such whole shares of Preferred Stock (or money and other property, if any, represented thereby) which has previously been called for redemption. After such surrender and upon the receipt of written instructions from the Holder of such Receipt or Receipts, without unreasonable delay (provided the Corporation has provided the Depositary with all reasonably necessary documentation requested in writing by the Depositary), 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 Preferred Stock and all money and other property, if any, represented by the Receipt or Receipts so surrendered for withdrawal, but Holders of such whole shares of Preferred Stock will not thereafter be entitled to deposit such shares of Preferred Stock hereunder or to receive a Receipt evidencing Depositary Shares therefor. Delivery of such shares of Preferred Stock and such money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may reasonably deem appropriate (or in such other manner as may be agreed to by the Corporation and the Depositary), which, if required by the Depositary, shall be properly endorsed or accompanied by proper instruments of transfer. If a Receipt delivered by the Holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole shares of Preferred Stock to be withdrawn, the Depositary shall at the same time, in addition to such number of whole shares of Preferred Stock and such money and other property, if any, to be so withdrawn, deliver to such Holder, or subject to Section 2.3 upon such Holder’s order, a new Receipt evidencing such excess number of Depositary Shares.
2.4.3 In no event will fractional shares of Preferred Stock (or any cash payment in lieu thereof) be delivered by the Depositary. Delivery of shares of Preferred Stock and money and other property, if any, being withdrawn pursuant to this Section 2.4 may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may reasonably deem appropriate (or in such other manner as may be agreed to by the Corporation and the Depositary).
2.4.4 If shares of Preferred Stock and the money and other property, if any, being withdrawn are to be delivered to a Person or Persons other than the Record Holder of the related Receipt or Receipts being surrendered for withdrawal of such shares of Preferred Stock, such Holder shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by such Holder for withdrawal of such shares of Preferred Stock be properly endorsed in blank or accompanied by a properly executed instrument of transfer in blank.
2.4.5 Delivery of shares of Preferred Stock and the money and other property, if any, represented by Receipts 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 Receipt or Receipts and for the account of the Holder thereof, such delivery may be made at such other place as may be designated by such Holder.
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Section 2.5 Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts.
2.5.1 As a condition precedent to the execution and delivery, registration of transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary’s Agents or the Corporation may require (i) payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Corporation shall have made such payment, the reimbursement to it) of any charges, taxes or expenses payable by the Holder of a Receipt pursuant to Section 5.7 (including any such tax or charge with respect to the shares of Preferred Stock being deposited or withdrawn or any charges or expense pursuant to Section 3.2), (ii) the production of evidence satisfactory to it as to the identity and genuineness of any signature (which evidence may include a Signature Guarantee), and (iii) any other reasonable evidence of authority that may be required by the Depositary, and may also require compliance with such regulations, if any, as the Depositary or the Corporation may establish consistent with the provisions of this Agreement and/or applicable law.
2.5.2 The deposit of shares of Preferred Stock may be refused, the delivery of Receipts against shares of Preferred Stock may be suspended, the registration of transfer of Receipts may be refused and the registration of transfer, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the Corporation is closed or (ii) if any such action is deemed reasonably necessary or advisable by the Depositary, any of the Depositary’s Agents or the Corporation 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 2.6 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary in its discretion may, absent notice to the Depositary that such Receipt has been acquired by a bona fide purchaser, execute and deliver a Receipt of like form and tenor in exchange and substitution for such mutilated, destroyed, lost or stolen Receipt, or in lieu of and in substitution for such mutilated, destroyed, lost or stolen Receipt, only 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, of the authenticity thereof and of his or her ownership thereof; and (ii) the Holder thereof furnishing the Depositary with an open penalty surety bond satisfactory to the Depositary, holding the Depositary and the Corporation harmless, absent notice to the Depositary that such Receipts have been acquired by a bona fide purchaser. Such Holder shall also comply with such other reasonable regulations and pay such other reasonable charges as the Depositary may prescribe and as required by Section 8-405 of the Uniform Commercial Code in effect in the State of New York.
Section 2.7 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary’s Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized and directed to destroy all Receipts so cancelled.
Section 2.8 Redemption of Preferred Stock.
2.8.1 Whenever the Corporation shall be permitted and shall elect to redeem shares of Preferred Stock in accordance with the terms of the Certificate of Designations, it shall (unless otherwise agreed to in writing with the Depositary) give or cause to be given to the Depositary, not less than fifteen (15) days and not more than sixty-five (65) days prior to the Redemption Date (as defined below), notice of the date of such proposed redemption of shares of Preferred Stock and of the number of such shares held by the Depositary to be so redeemed and the applicable redemption price, which notice shall be accompanied by a certificate from the Corporation stating that such redemption of shares of Preferred Stock is in accordance with the provisions of the Certificate of Designations. On the date of such redemption, provided that the Corporation shall then have paid or caused to be paid in full to the Depositary the redemption price of Preferred Stock to be redeemed, plus an amount equal to any accrued but unpaid dividends to, but excluding, the Redemption Date, in accordance with the provisions of the Certificate of Designations, the Depositary shall redeem the number of Depositary Shares representing such shares of Preferred Stock. The Depositary shall, if requested in writing, mail the notice of the Corporation’s redemption of shares of Preferred Stock and the proposed simultaneous redemption of the number of Depositary Shares representing such shares of Preferred Stock to be redeemed by first class mail, postage prepaid, at the respective last addresses as they appear on the records of the Depositary, or transmit in accordance with the applicable procedures of any Global Receipt Depositary or by such other method approved by the Depositary, in its reasonable discretion, in either case not less than ten (10) days and not more than sixty (60) days prior to the date fixed for redemption of such shares of Preferred Stock and Depositary Shares (the “Redemption Date”), to the Record Holders of the Receipts evidencing 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 or transmit any such notice of redemption of Depositary Shares to one or more such Holders nor any defect in any notice of redemption of Depositary Shares to one or more such Holders shall affect the validity of the proceedings for redemption as to the other Holders. Each such notice shall be prepared by the Corporation and 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 or the manner of its calculation; and (iv) the place or places where Receipts representing such Depositary Shares are to be surrendered for payment of the redemption price. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected either pro rata, by lot or by such other method in accordance with DTC’s procedures.
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2.8.2 Notice having been mailed or transmitted by the Depositary as aforesaid, from and including the Redemption Date (unless the Corporation shall have failed to provide the funds necessary to redeem shares of Preferred Stock evidenced by the Depositary Shares called for redemption): (i) all dividends on the shares of Preferred Stock so called for redemption shall cease to accrue from and after the Redemption Date; (ii) the Depositary Shares being redeemed from such proceeds shall be deemed no longer to be outstanding; (iii) 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 (iv) upon surrender in accordance with such redemption notice of the Receipts evidencing any such Depositary Shares called for redemption (properly endorsed or assigned for transfer, if the Depositary or applicable law shall so require), such Depositary Shares shall be redeemed by the Depositary with the proceeds of the corresponding shares of Preferred Stock redeemed in accordance with the provisions of the Certificate of Designations.
2.8.3 If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption, the Depositary will deliver to the Holder of such Receipt upon its surrender to the Depositary, together with the redemption payment, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption.
Section 2.9 Receipts Issuable in Global Registered Form.
2.9.1 If the Corporation shall determine that the Receipts are to be issued in whole or in part in the form of one or more Global Registered Receipts, then the Depositary shall, if instructed, in accordance with the other provisions of this Agreement, execute and deliver one or more Global Registered Receipts evidencing the Receipts of such series, which (i) shall represent, and shall be denominated in an amount equal to the aggregate number of Depositary Shares evidenced by, the Receipts to be represented by such Global Registered Receipt or Receipts and (ii) shall be registered in the name of the Global Receipt Depository therefor or its nominee.
2.9.2 Notwithstanding any other provision of this Agreement to the contrary, unless otherwise provided in the Global Registered Receipt, a Global Registered Receipt may only be transferred in whole and only by the applicable Global Receipt Depository for such Global Registered Receipt to a nominee of such Global Receipt Depository, or by a nominee of such Global Receipt Depository to such Global Receipt Depository or another nominee of such Global Receipt Depository, or by such Global Receipt Depository or any such nominee to a successor Global Receipt Depository for such Global Registered Receipt selected or approved by the Corporation or to a nominee of such successor Global Receipt Depository. Except as provided below, owners solely of beneficial interests in a Global Registered Receipt shall not be entitled to receive physical delivery of the Receipts represented by such Global Registered Receipt or to have such Receipts, or the Depositary Shares represented by those Receipts, registered in their names. Neither any such beneficial owner nor any direct or indirect participant of a Global Receipt Depository shall have any rights or obligations under this Agreement with respect to any Global Registered Receipt held on their behalf by a Global Receipt Depository and such Global Receipt Depository may be treated by the Corporation, the Depositary and any director, officer, employee or agent of the Corporation or the Depositary as the Holder of such Global Registered Receipt for all purposes whatsoever. Unless and until definitive Receipts are delivered to the owners of the beneficial interests in a Global Registered Receipt, (i) the applicable Global Receipt Depository will make book-entry transfers among its participants and receive and transmit all payments and distributions in respect of the Global Registered Receipts to such participants, in each case, in accordance with its applicable procedures and arrangements, and (ii) whenever any notice, payment or other communication to the holders of Global Registered Receipts is required under this Agreement, the Corporation and the Depositary shall give all such notices, payments and communications specified herein to be given to such holders to the applicable Global Receipt Depository.
2.9.3 If an Exchange Event has occurred with respect to any Global Registered Receipt, then, in any such event, the Depositary shall, upon receipt of a written order from the Corporation authorizing and directing the Depositary to execute and deliver the individual definitive registered Receipts in exchange for such Global Registered Receipt, execute and deliver individual definitive registered Receipts, in authorized denominations and of like terms, in an aggregate number of Depositary Shares equal to the aggregate number of Depositary Shares represented by the Global Registered Receipt being delivered in exchange for such Receipts.
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2.9.4 Definitive registered Receipts issued in exchange for a Global Registered Receipt pursuant to this Section shall be registered in such names and in such authorized denominations as the Global Receipt Depository for such Global Registered Receipt, pursuant to instructions from its participants, shall instruct the Depositary in writing. The Depositary shall deliver such Receipts to the Persons in whose names such Receipts are so registered.
2.9.5 Notwithstanding anything to the contrary in this Agreement, should the Corporation determine that the Receipts should be issued as a Global Registered Receipt, the parties hereto shall comply with the terms of each Letter of Representations.
Article III
Certain Obligations of Holders of Receipts and the Corporation
Section 3.1 Filing Proofs, Certificates and Other Information.
Any Holder of a Receipt 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 Corporation may reasonably deem necessary or proper. The Depositary or the Corporation may withhold the delivery, or delay the registration of transfer or redemption, of any Receipt or the withdrawal of shares of Preferred Stock represented by the Depositary Shares and evidenced by a Receipt 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.
Section 3.2 Payment of Taxes or Other Governmental Charges.
Holders of Receipts 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 Receipt or any withdrawal of shares of Preferred Stock and all money or other property, if any, represented by the Depositary Shares evidenced by such Receipt may be refused by the Depositary until any such payment due is made, and any dividends, interest payments or other distributions may be withheld or any part of or all shares of Preferred Stock or other property represented by the Depositary Shares evidenced by such Receipt 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, interest payments 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 Receipt remaining liable for any deficiency.
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Article IV
The Deposited Securities; Notices
Section 4.1 Cash Distributions
4.1.1 Whenever Equiniti Trust Company, as dividend disbursement agent as appointed herein (including any successor thereof pursuant to the terms herein, the “Dividend Disbursement Agent”), shall receive any cash dividend or other cash distribution on Preferred Stock, the Dividend Disbursement Agent shall, subject to Sections 3.1 and 3.2 and, if received, in accordance with written instructions from the Corporation, distribute to Record Holders of Receipts 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 evidenced by the Receipts held by such Holders; provided, however, that in case the Corporation or Equiniti Trust Company shall be required to withhold and shall withhold from any cash dividend or other cash distribution in respect of Preferred 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 Dividend Disbursement Agent shall distribute or make available for distribution, as the case may be and, if received, in accordance with the Corporation’s written instructions, only such amount, however, as can be distributed without attributing to any Holder of Receipts a fraction of one cent, and any balance not so distributable shall be held by the Dividend Disbursement Agent (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by the Dividend Disbursement Agent for distribution to Record Holders of Receipts then outstanding. The parties understand and agree that Equiniti Trust Company will comply with the U.S. federal withholding and information reporting requirements (including IRS Forms 1042-S and 1099 information reporting requirements) imposed in connection with payments on the Preferred Stock. Each Holder of a Receipt shall provide the Depositary with its certified tax identification number on a properly completed Form W-8 or W-9 or other appropriate form, as may be applicable. Each Holder of a Receipt acknowledges that, in the event of non-compliance with the preceding sentence, the Internal Revenue Code of 1986, as amended, may require withholding by the Depositary of a portion of any of the distributions to be made to such Holder hereunder.
4.1.2 All funds received by the Dividend Disbursement Agent pursuant to this Agreement that are to be distributed or applied by the Dividend Disbursement Agent in accordance with the terms of this Agreement (the “Funds”) shall be delivered to the Dividend Disbursement Agent by 2:00 p.m. Central Time three (3) business days prior to the Distribution Date. The Dividend Disbursement Agent shall have no obligation to pay the dividend until sufficient collected and immediately available funds have been transferred to it. The Dividend Disbursement Agent shall not be responsible for any loss or liability (including, without limitation, any interest) arising from or relating to any delay or failure by the Corporation to timely deposit such funds. The Corporation acknowledges that delivery of Funds to the Dividend Disbursement Agent after the 2:00 p.m. Central Time three (3) days prior payment timeline (“Late-Day Funding”) may cause delays in payments such that payments may be made on the business day following the Distribution Date, and such payments will be subject to the terms of Section 4.1.5 below. Once received by the Dividend Disbursement Agent, Funds shall be held by the Dividend Disbursement Agent as agent for the Corporation. Until paid or distributed in accordance with this Agreement, the Funds shall be deposited with one or more bank, trust company, or other financial institution (including without limitation, its affiliate American Stock Transfer & Trust Company, LLC, a New York limited liability trust company) (the “Custodian”) to be maintained by Equiniti Trust Company in its name as agent for the Corporation.
4.1.3 The Dividend Disbursement Agent will only draw upon the Funds in such account as required from time to time in order to make the payments to Record Holders of Receipts and any applicable tax withholding payments. The Dividend Disbursement Agent may from time to time receive interest, dividends or other earnings in connection with such deposits. The Dividend Disbursement Agent shall not be obligated to pay such interest, dividends or earnings to the Corporation, any Record Holder or any other party.
4.1.4 The Dividend Disbursement Agent is acting as agent hereunder and is not a debtor of the Corporation in respect of the Funds.
4.1.5 In the case of Late-Day Funding, federal deposit insurance or other bank liquidity charges may apply in connection with the overnight deposit of Funds with commercial banks. The parties agree that any such charges assessed as a result of Late-Day Funding will be charged to the Corporation and the Corporation hereby agrees to pay such charges.
4.1.6 On the date of this Agreement, the Dividend Disbursement Agent shall provide the Corporation with the account information for the account to which the Corporation shall deliver the cash dividends and other cash distributions on Preferred Stock referred to in Section 4.1.1. The Dividend Disbursement Agent may update such account information from time to time by notice to the Corporation provided in accordance with Section 7.4.
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Section 4.2 Distributions Other than Cash, Rights, Preferences or Privileges.
Whenever the Depositary shall receive any distribution other than cash, rights, preferences or privileges upon Preferred Stock, the Depositary shall, subject to Sections 3.1 and 3.2, distribute to Record Holders of Receipts 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 evidenced by such Receipts held by such Holders, in any manner that the Depositary may reasonably 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 Corporation or the Depositary withhold an amount on account of taxes or charges), the Depositary deems, after consultation with the Corporation, such distribution not to be feasible, the Depositary may, with the approval of the Corporation, 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, in a commercially reasonable manner. 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 Equiniti Trust Company (or any successor hereunder) to Record Holders of Receipts as provided by Section 4.1 in the case of a distribution received in cash. The Corporation shall not make any distribution of such securities or property to the Depositary and the Depositary shall not make any distribution of such securities or property to the Holders of Receipts unless the Corporation shall have provided to the Depositary an opinion of counsel stating that such securities or property have been registered under the Securities Act or do not need to be registered in connection with such distributions.
Section 4.3 Subscription Rights, Preferences or Privileges.
4.3.1 If the Corporation shall at any time offer or cause to be offered to the Persons in whose names shares of Preferred Stock are recorded on the books of the Corporation 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 communicated to the Depositary and made available by the Depositary to the Record Holders of Receipts in such manner as the Corporation shall direct and the Depositary shall agree, 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 Corporation in its discretion with the acknowledgement of the Depositary; provided, however, that (i) if at the time of issue or offer of any such rights, preferences or privileges the Corporation determines that it is not lawful or (after consultation with the Depositary) not feasible to make such rights, preferences or privileges available to Holders of Receipts by the issue of warrants or otherwise, or (ii) if and to the extent so instructed by Holders of Receipts who do not desire to exercise such rights, preferences or privileges, then the Corporation, in its discretion (with acknowledgement of the Depositary, in any case where the Corporation 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 be delivered to Equiniti Trust Company (or any successor hereunder) and, if received, in accordance with the written instructions of the Corporation and, subject to Sections 3.1 and 3.2, be distributed by Equiniti Trust Company (or any successor hereunder) to the Record Holders of Receipts entitled thereto as provided by Section 4.1 in the case of a distribution received in cash.
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4.3.2 The Corporation shall notify the Depositary whether registration under the Securities Act of the securities to which any rights, preferences or privileges relate is required in order for Holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, and the Corporation agrees with the Depositary that it will file promptly a registration statement pursuant to the Securities Act with respect to such rights, preferences or privileges and securities and use its reasonable best efforts to cause such registration statement to become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such Holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the Holders of Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such registration statement shall have become effective, or the Corporation shall have provided to the Depositary an opinion of counsel to the effect that the offering and sale of such securities to the Holders are exempt from registration under the provisions of the Securities Act.
4.3.3 The Corporation shall notify the Depositary whether 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 Holders of Receipts, and the Corporation agrees with the Depositary that the Corporation will use its reasonable 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.
Section 4.4 Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts.
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 Preferred Stock, or whenever the Depositary shall receive notice of any meeting at which holders of Preferred Stock are entitled to vote or of which holders of Preferred Stock are entitled to notice, or whenever the Depositary and the Corporation shall decide it is appropriate, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Corporation with respect to or otherwise in accordance with the terms of Preferred Stock) for the determination of the Holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting, or who shall be entitled to notice of such meeting or for any other appropriate reasons.
Section 4.5 Voting Rights.
Subject to the provisions of the Certificate of Designations, upon receipt of notice from the Corporation of any meeting at which the holders of Preferred Stock are entitled to vote, the Depositary shall, if requested in writing, as soon as practicable thereafter, mail or transmit by such other method approved by the Depositary, in its reasonable discretion, to the Record Holders of Receipts, as determined on the record date fixed pursuant to Section 4.4, a notice prepared by the Corporation which shall contain (i) such information as is contained in such notice of meeting, (ii) a statement that the Holders of Receipts at the close of business on a specified record date fixed pursuant to Section 4.4 may, subject to any applicable restrictions, instruct the Depositary as to the exercise of the voting rights pertaining to the shares of Preferred Stock represented by their respective Depositary Shares (including an express indication that instructions may be given to the Depositary to give a discretionary proxy to a Person designated by the Corporation), and (iii) a brief statement as to the manner in which such instructions may be given. Upon the written request of the Holders of Receipts on the relevant record date, the Depositary shall to the extent possible vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of whole shares of Preferred Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular voting instructions are received. The Corporation hereby agrees to take all reasonable action which may be deemed necessary by the Depositary in order to enable the Depositary to vote such shares of Preferred Stock or cause such shares to be voted. In the absence of specific instructions from the Holder of a Receipt, the Depositary will not vote (but, at its discretion, may appear at any meeting with respect to such Preferred Stock unless directed to the contrary by the Holders of all the Receipts) to the extent of the Preferred Stock represented by the Depositary Shares evidenced by such Receipts.
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Section 4.6 Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc.
Upon any change in liquidation preference, split-up, combination or any other reclassification of Preferred Stock, subject to the provisions of the Certificate of Designations, or upon any recapitalization, reorganization, merger or consolidation affecting the Corporation or to which it is a party, the Depositary shall, upon the written instructions of the Corporation setting forth any adjustment, (i) make such adjustments as are certified by the Corporation in (a) the fraction of an interest represented by one Depositary Share in one share of Preferred Stock and (b) the ratio of the redemption price per Depositary Share to the redemption price per share of Preferred Stock, in each case as stated in such instructions and (ii) treat any securities or property (including cash) which shall be received by the Depositary in exchange for or upon conversion of or in respect of Preferred Stock as new deposited property so received in exchange for or upon conversion or in respect of such Preferred Stock. In any such case, the Depositary shall, upon receipt of written instructions of the Corporation, execute and deliver additional Receipts or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited property. Anything to the contrary herein notwithstanding, Holders of Receipts shall have the right from and after the effective date of any such change in liquidation preference, split-up, combination or other reclassification of Preferred Stock or any such recapitalization, reorganization, merger or consolidation to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the shares of Preferred Stock represented thereby only into or for, as the case may be, the kind and amount of shares and other securities and property and cash into which the shares of Preferred Stock represented by such Receipts might have been converted or for which such shares might have been exchanged or surrendered immediately prior to the effective date of such transaction; provided, that the Depositary shall not have any obligations under this sentence unless and until it has received written instructions from the Corporation.
Section 4.7 Delivery of Reports.
The Depositary shall make available for inspection by Holders of Receipts at the Depositary’s Office and at such other places as it may from time to time deem advisable during normal business hours any reports and communications received from the Corporation that are both received by the Depositary as the holder of the deposited shares and which the Corporation is required to furnish to the holders of Preferred Stock. In addition, the Depositary shall transmit, upon written request by the Corporation, certain notices and reports to the Holders of Receipts as provided in Section 5.5.
Section 4.8 Lists of Receipt Holders.
Promptly upon request from time to time by the Corporation, the Registrar shall furnish to it a list, as of the most recent practicable date, of the names, addresses and holdings of Depositary Shares of all registered Holders of Receipts.
Section 4.9 Withholding.
Notwithstanding any other provision of this Agreement, in the event that the Depositary determines that any distribution in property is subject to any tax or other charge that the Depositary is obligated by law to withhold, the Depositary may dispose of, by public or private sale, all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes or charges, and the Depositary shall distribute the net proceeds of any such sale or the balance of any such property after deduction of such taxes or charges to the Holders of Receipts entitled thereto in proportion to the number of Depositary Shares held by them, respectively; provided, however, that in the event the Depositary determines that such distribution of property is subject to withholding tax only with respect to some but not all Holders of Receipts, the Depositary will use its best efforts (i) to sell only that portion of such property distributable to such Holders that is required to generate sufficient proceeds to pay such withholding tax and (ii) to effect any such sale in such a manner so as to avoid affecting the rights of any other Holders of Receipts to receive such distribution in property.
Article V
The Depositary, the Depositary’s Agents, The Dividend Disbursement Agent, the Registrar, The Transfer Agent, and the Corporation
Section 5.1 Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar.
5.1.1 Upon execution of this Agreement, the Depositary shall maintain at the Depositary’s Office, facilities for the execution and delivery, registration and registration of transfer, surrender and exchange of Receipts, and at the offices of the Depositary’s Agents, if any, facilities for the delivery, registration of transfer, surrender and exchange of Receipts, all in accordance with the provisions of this Agreement.
5.1.2 The Depositary shall keep books at the Depositary’s Office for the registration and registration of transfer of Receipts. Upon direction by the Corporation and with reasonable notice to the Depositary, the Registrar shall open its books for inspection by the Record Holders of Receipts as directed by the Corporation; provided, that any Record Holder shall be granted such right by the Corporation only after certifying that such inspection shall be for a proper purpose reasonably related to such Person’s interest as an owner of Depositary Shares evidenced by the Receipts.
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5.1.3 The Depositary or Registrar may close such books, at any time or from time to time, when deemed necessary or advisable by the Depositary, the Registrar, any Depositary’s Agent or the Corporation because of any requirement of law or of any government, governmental body or commission, stock exchange or any applicable self-regulatory body.
5.1.4 If the Receipts or the Depositary Shares evidenced thereby or the shares of Preferred Stock represented by such Depositary Shares shall be listed on one or more national securities exchanges, the Depositary may, with the written approval of the Corporation, appoint a Registrar (reasonably acceptable to the Corporation) for registration of the 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 any such exchange) may be removed and a substitute Registrar appointed by the Depositary upon the written request or with the written approval of the Corporation. If the Receipts, such Depositary Shares or Preferred Stock are listed on one or more other securities exchanges, the Depositary will, at the written request and expense of the Corporation, arrange such facilities for the delivery, registration, registration of transfer, surrender and exchange of such Receipts, such Depositary Shares or Preferred Stock as may be required by law or applicable securities exchange regulation.
Section 5.2 Prevention of or Delay in Performance by the Depositary, the Depositary’s Agents, the Dividend Disbursement Agent, the Registrar or the Corporation.
None of the Depositary, any Depositary’s Agent, the Dividend Disbursement Agent, any Registrar or the Corporation, as the case may be, shall incur any liability to any Holder of Receipts if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary’s Agent or the Registrar, as the case may be, by reason of any provision, present or future, of the Corporation’s Second Amended and Restated Certificate of Incorporation (including the Certificate of Designations) or by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, the Depositary’s Agent, the Registrar or the Corporation, as the case may be, shall be prevented or forbidden from, or subjected to any penalty on account of, doing or performing any act or thing which the terms of this Agreement provide shall be done or performed; nor shall the Depositary, any Depositary’s Agent, any Registrar or the Corporation, as the case may be, incur liability to any Holder of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which the terms of this Agreement shall 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 Agreement, except in either case, as otherwise explicitly set forth in this Agreement.
Section 5.3 Obligations of the Depositary, the Depositary’s Agents, the Registrar, Dividend Disbursement Agent, Transfer Agent and the Corporation.
5.3.1 None of the Depositary, any Depositary’s Agent, Dividend Disbursement Agent, any Registrar, any Transfer Agent or the Corporation, as the case may be, assumes any obligation or shall be subject to any liability under this Agreement to Holders of Receipts or to any other Person other than for its gross negligence, willful misconduct or actual fraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, none of the Depositary, the Depositary’s Agent, Dividend Disbursement Agent, any Registrar, any Transfer Agent or the Corporation, as the case may be, shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Any liability of the Depositary, any Depositary’s Agent, Dividend Disbursement Agent or the Registrar or Transfer Agent, as the case may be, under this Agreement will be limited in the aggregate to an amount equal to the annual fees paid by the Corporation to such Person, but not including reimbursable expenses; provided, however, that in the event that such liability arises as a result of gross negligence, willful misconduct or actual fraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction) by the Depositary, any of the Depositary’s Agents, Dividend Disbursement Agent, any Registrar or any Transfer Agent, as the case may be, such limit shall not apply and such liability hereunder shall be instead limited to the amount of such misappropriated funds or the liability resulting from such gross negligence, actual fraud or willful misconduct (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction).
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5.3.2 Subject to Section 5.3.1, none of the Depositary, any Depositary’s Agent, Dividend Disbursement Agent, any Registrar or any Transfer Agent, as the case may be, shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of Preferred Stock, the Depositary Shares or the Receipts which in the opinion of its counsel 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.
5.3.3 None of the Depositary, any Depositary’s Agent, Dividend Disbursement Agent, any Registrar, any Transfer Agent or the Corporation, as the case may be, shall be liable for any action or any failure to act by it in reliance upon the fully-informed written advice of external legal counsel or accountants, or information from any Person presenting the shares of Preferred Stock for deposit, any Holder of a Receipt or any other Person believed by it to be competent to give such information. The Depositary, any Depositary’s Agent, Dividend Disbursement Agent, any Registrar, any Transfer Agent and the Corporation, as the case may be, may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
5.3.4 The Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar, as the case may be, shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not taken with actual fraud, willful misconduct or gross negligence (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction). The Depositary undertakes, and any Depositary’s Agent, Dividend Disbursement Agent, Registrar and any Transfer Agent, as the case may be, shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Depositary, any Depositary’s Agent, Dividend Disbursement Agent, Registrar or any Transfer Agent.
5.3.5 The Depositary may also act as dividend disbursement agent, transfer agent, trustee or registrar of any of the securities of the Corporation and its Affiliates or act in any other capacity for the Corporation or its Affiliates.
5.3.6 The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Receipts, the Depositary Shares or Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law or this Agreement. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
5.3.7 In the event the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar, as the case may be, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar hereunder, or in the administration of any of the provisions of this Agreement, the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar may, in its reasonable discretion, and after discussion with external legal counsel, upon providing written notice to the Corporation, refrain from taking any action and the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar shall be fully protected and shall not be liable in any way to the Corporation, any Holders of Receipts or any other Person or entity for refraining from taking such action, unless the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar receives written instructions or a certificate of the Corporation which eliminates such ambiguity or uncertainty to the reasonable satisfaction of the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar or which proves or establishes the applicable matter to the reasonable satisfaction of the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar, as long as any such non-action is not taken with actual fraud, willful misconduct or gross negligence (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction). Such written instructions shall be full and complete authorization to the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar, as the case may be, and the Depositary, the Depositary’s Agents, Dividend Disbursement Agent, any Transfer Agent or Registrar shall incur no liability for or in respect of any action taken, suffered or omitted by it under the provisions of this Agreement in reliance upon such written instructions.
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5.3.8 In the event the Depositary, the Depositary’s Agent, Dividend Disbursement Agent, the Registrar or the Transfer Agent, as the case may be, shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, the Depositary’s Agent, Dividend Disbursement Agent, the Registrar or the Transfer Agent, as the case may be, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall incur no liability and shall be entitled to the full indemnification set forth in Section 5.6 hereof in connection with any action so taken, as long as any such action is not taken with actual fraud, willful misconduct or gross negligence (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction).
5.3.9 It is intended that the Depositary shall not be deemed to be an “issuer” of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary is acting only in a ministerial capacity as Depositary for the deposited Preferred Stock. The Depositary will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance or transfer of the Receipts, the shares of Preferred Stock or Depositary Shares.
5.3.10 None of the Depositary (or its officers, directors, employees or agents), any Depositary’s Agent, any Registrar or any Transfer Agent makes any representation or has any responsibility as to the validity of any registration statement pursuant to which the Depositary Shares may be registered under the Securities Act, the deposited Preferred Stock, the Depositary Shares, the Receipts (except its countersignature thereon) or any instruments referred to therein or herein, or as to the correctness of any statement made in any such registration statement or herein.
5.3.11 The Depositary assumes no responsibility for the correctness of the description that appears in the Receipts. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no representations or warranties as to the validity or genuineness of any shares of Preferred Stock at any time deposited with the Depositary hereunder or of the Depositary Shares, as to the sufficiency of this Agreement or as to the value of the Depositary Shares. The Depositary shall not be accountable for the use or application by the Corporation of the Depositary Shares or the Receipts or the proceeds thereof.
5.3.12 The obligations of the parties hereto set forth in this Section 5.3 shall survive (i) the replacement, removal or resignation of the Depositary, Registrar, Dividend Disbursement Agent, Transfer Agent or Depositary’s Agent or (ii) termination of this Agreement.
Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary.
5.4.1 The Depositary may at any time resign as Depositary hereunder by delivering notice of its election to do so to the Corporation, such resignation to take effect upon the appointment of a successor Xxxxxxxxxx and its acceptance of such appointment as hereinafter provided.
5.4.2 The Depositary may at any time be removed by the Corporation by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary hereunder and its acceptance of such appointment as hereinafter provided.
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5.4.3 In case at any time the Depositary acting hereunder shall resign or be removed, the Corporation shall, within sixty (60) days after the delivery of the notice of resignation or removal, as the case may be, seek to appoint a successor Depositary, which shall be (i) a Person having its principal office in the United States of America and having a combined capital and surplus, along with its Affiliates, of at least $50,000,000 or (ii) an Affiliate of any such Person. In the event of such removal or resignation, the Corporation will appoint a successor Depositary and inform the Depositary of the name and address of any successor Depositary so appointed; provided that the Corporation shall use its reasonable best efforts to ensure that there is at all relevant times when Preferred Stock is outstanding, a Person or entity appointed and serving as the Depositary. Upon payment of all outstanding fees and expenses hereunder, the Depositary shall promptly forward to the successor Depositary or its designee any shares of stock held by it and any certificates, letters, notices and other document that the Depositary may receive after its appointment has so terminated.
5.4.4 If no successor Depositary shall have been so appointed and have accepted appointment within sixty (60) days after delivery of such notice, any Record Holder of Receipts hereunder or the 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 Corporation an instrument in writing accepting its appointment and assuming all obligations of the Depositary hereunder, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Agreement, as a party hereto, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver any right, title and interest in the shares of Preferred Stock and any moneys or property held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any successor Depositary shall promptly mail or transmit by such other method approved by such successor Depositary, in its reasonable discretion, notice of its appointment to the Record Holders of Receipts.
5.4.5 Any Person into or with which the Depositary may be merged, consolidated or converted, or any Person to which all or a substantial part of the assets of the Depositary may be transferred or which succeeds to the shareholder services business of the Depositary shall be the successor of the Depositary without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depositary may authenticate the Receipts in the name of the predecessor Depositary or its own name as successor Depositary.
5.4.6 Subject to Sections 5.4.1 and 5.4.2, the removal or resignation of the Depositary shall automatically be deemed to be a removal of the Depositary as Registrar, Transfer Agent, Dividend Disbursement Agent, and redemption agent herein without any further act or deed.
Section 5.5 Corporate Notices and Reports.
The Corporation agrees that it will deliver to the Depositary, and the Depositary will, promptly after receipt of all necessary information and documents, transmit to the Record Holders of Receipts, in each case at the addresses recorded in the Depositary’s or Registrar’s books, copies of all notices, reports and communications from the Corporation (including without limitation financial statements) required by law, by the rules of any national securities exchange upon which Preferred Stock, the Depositary Shares or the Receipts are listed or by the Corporation’s Third Amended and Restated Certificate of Incorporation (including the Certificate of Designations), to be furnished to the Record Holders of Receipts. Such transmission will be at the Corporation’s expense and the Corporation will provide the Depositary with such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the Record Holders of Receipts at the Corporation’s expense such other documents as may be requested in writing by the Corporation.
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Section 5.6 Indemnification by the Corporation.
Notwithstanding Section 5.3 to the contrary, the Corporation shall indemnify the Depositary, any Depositary’s Agent, Dividend Disbursement Agent, any Registrar and any Transfer Agent (including each of their officers, directors, agents and employees) against, and hold each of them harmless from and against, any fee, loss, damage, cost, penalty, fine, judgment, liability or expense (including the reasonable costs and expenses of its legal counsel) which may arise out of acts performed, taken or omitted to be taken in connection with its acting as Depositary, Depositary’s Agent, Dividend Disbursement Agent, Registrar or Transfer Agent, respectively, under this Agreement (including, without limitation, the enforcement by the Depositary, Depositary’s Agent, Dividend Disbursement Agent, Registrar or Transfer Agent, as the case may be, of this Agreement) and the Receipts by the Depositary, any Registrar or any of their respective agents (including any Depositary’s Agent) and any transactions or documents contemplated hereby, except for any liability arising out of gross negligence, willful misconduct, or actual fraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction) on the respective parts of any such Person or Persons. The obligations of the Corporation set forth in this Section 5.6 shall survive (i) any succession of any Depositary, Registrar, Dividend Disbursement Agent, Transfer Agent or Depositary’s Agent or (ii) termination of this Agreement.
Section 5.7 Fees, Charges and Expenses.
The Corporation agrees promptly to pay the Depositary the compensation, as agreed upon with the Corporation, for all services rendered by the Depositary, Depositary’s Agent, Dividend Disbursement Agent, Transfer Agent and Registrar hereunder and to reimburse the Depositary for its reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and expenses \) incurred by the Depositary, Depositary’s Agent, Dividend Disbursement Agent, Transfer Agent and Registrar without gross negligence, willful misconduct, or actual fraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction) on its part in connection with the services rendered by it hereunder. The Corporation shall pay all charges of the Depositary in connection with the initial deposit of shares of Preferred Stock and the initial issuance of the Depositary Shares, all withdrawals of shares of Preferred Stock by owners of Depositary Shares, and any redemption or exchange of shares of Preferred Stock at the option of the Corporation. The Corporation shall pay all transfer and other taxes and charges arising solely from the existence of the depositary arrangements. All other transfer and other taxes and charges shall be at the expense of Holders of Depositary Shares. If, at the request of a Holder of Receipts, the Depositary incurs charges or expenses for which the Corporation is not otherwise liable hereunder, such Holder will be liable for such charges and expenses; provided, however, that the Depositary may, at its sole option, require a Holder of a Receipt to prepay the Depositary any charge or expense the Depositary has been asked to incur at the request of such Holder of Receipts. The Depositary shall present its statement for charges and expenses to the Corporation at such intervals as the Corporation and the Depositary may agree.
Article VI
Amendment and Termination
Section 6.1 Amendment.
The form of the Receipts and any provisions of this Agreement may at any time and from time to time be amended by written agreement between the Corporation and the Depositary in any respect which they may deem necessary or desirable; provided, however, that no such amendment (other than any change in the fees of any Depositary, Registrar or Transfer Agent) which shall materially and adversely alter the rights of the Holders of Receipts shall be effective against the Holders of Receipts unless such amendment shall have been approved by the Holders of Receipts representing in the aggregate at least a majority of the Depositary Shares then outstanding. Every Holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by the Agreement as amended thereby. In no event shall any amendment impair the right, subject to the provisions of Sections 2.5 and 2.6 and Article III, of any owner of Depositary Shares to surrender any Receipt evidencing such Depositary Shares to the Depositary with instructions to deliver to the Holder the shares of Preferred Stock and all money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law or the rules and regulations of any governmental body, agency or commission, or the NYSE or any other applicable securities exchange. As a condition precedent to the Depositary’s execution of any amendment, the Corporation shall deliver to the Depositary a certificate that states that the proposed amendment is in compliance with the terms of this Section 6.1.
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Section 6.2 Termination.
6.2.1 This Agreement may be terminated by the Corporation or the Depositary only if (i) all outstanding Depositary Shares have been redeemed pursuant to Section 2.8; (ii) there shall have been made a complete repayment or redemption or a final distribution in respect of Preferred Stock in connection with any liquidation, dissolution or winding up of the Corporation and such repayment, redemption or distribution proceeds, as the case may be, shall have been distributed to the Holders of Receipts representing Depositary Shares pursuant to Section 4.1 or 4.2, as applicable; or (iii) upon the consent of Holders of Receipts representing in the aggregate not less than two-thirds of the Depositary Shares outstanding.
6.2.2 Upon the termination of this Agreement, the Corporation shall be discharged from all obligations under this Agreement except for its obligations to the Depositary, any Depositary’s Agent and any Registrar under Sections 5.6 and 5.7; provided, further, that Section 5.3 and 5.6 shall survive the termination of this Agreement.
Article VII
Miscellaneous
Section 7.1 Counterparts.
This Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including without limitation, DocuSign and AdobeSign or any other similar platform) shall be effective as delivery of a manually executed counterpart of this Agreement. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
Section 7.2 Exclusive Benefit of Parties.
This Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other Person whatsoever.
Section 7.3 Invalidity of Provisions.
In case any one or more of the provisions contained in this Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Notices.
Any and all notices to be given to the Corporation 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 electronic mail and confirmed by letter, addressed to the Corporation at:
Xxxxxxx Financial Inc.
0 Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
Attention: Treasurer
Email: xxxx.xxxxxxxx@xxxxxxx.xxx
with copies, which shall not constitute notice, to:
Attn: General Counsel
Email: xxxxxx.xxxxxx@xxxxxxx.xxx, and xx_xxxxxxxxxxxxxx@xxxxxxx.xxx
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or at any other addresses of which the Corporation 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 electronic mail and confirmed by letter, addressed to the Depositary at the Depositary’s Office at:
Equiniti Trust Company
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000
Email: XXXX-XxxxxxxXxxxxxxxxx@Xxxxxxxx.xxx
Attention: Relationship Manager
or at any other address of which the Depositary shall have notified the Corporation in writing.
Any and all notices to be given to any Record Holder of a Receipt 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, recognized next day courier services, facsimile transmission or electronic mail, 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 timely 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; or in the case of any Global Receipt Depository, in accordance with its applicable procedures and arrangements for notices.
Delivery of a notice sent by mail or as provided in this Section 7.4 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 facsimile transmission or electronic mail) is deposited, postage prepaid, in a post office letter box; provided, that notice to a Global Receipt Depository shall be deemed to be effected at the time such notice is delivered or made as provided in this Section 7.4; provided, further, that the Depositary or the Corporation may, however, act upon any electronic mail received by it from the other or from any Holder of a Receipt, notwithstanding that such electronic mail shall not subsequently be confirmed by letter or as aforesaid.
Section 7.5 Depositary’s Agents.
The Depositary may from time to time appoint qualified 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 such Depositary’s Agents. The Depositary will promptly notify the Corporation of any such action. The Depositary shall be liable for any act or omission of a Depositary Agent as if such act or omission were committed by the Depositary.
Section 7.6 Appointment of Transfer Agent, Registrar, Dividend Disbursement Agent and Redemption Agent in Respect of Receipts and Preferred Stock.
The Corporation hereby appoints Equiniti Trust Company as Registrar, Dividend Disbursement Agent and redemption agent in respect of the Receipts, and Equiniti Trust Company hereby accepts such respective appointments. The Corporation hereby appoints Equiniti Trust Company as Transfer Agent, Registrar, Dividend Disbursement Agent and redemption agent in respect of the Preferred Stock and Equiniti Trust Company hereby accepts such appointments. With respect to the appointments of Equiniti Trust Company as Transfer Agent, Registrar, Dividend Disbursement Agent and redemption agent in respect of the Preferred Stock, each of the Corporation and Equiniti Trust Company, in their respective capacities under such appointments, shall be entitled to the same rights, indemnities, immunities and benefits as the Corporation and Depositary hereunder, respectively, as if explicitly named in each such provision.
Section 7.7 Holders of Receipts are Parties.
The Holders of Receipts from time to time shall be parties to this Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery thereof.
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Section 7.8 Governing Law.
This Agreement and the Receipts and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable conflicts of law principles.
Section 7.9 Inspection of Deposit Agreement.
Copies of this Agreement shall be filed with the Depositary and the Depositary’s Agents and shall be made available for inspection at the Depositary’s Office and the respective offices of the Depositary’s Agents during business hours upon reasonable notice to the Depositary by any Holder of a Receipt.
Section 7.10 Headings.
The headings of Articles and Sections in this Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Agreement or the Receipts or to have any bearing upon the meaning or interpretation of any provision contained herein or in the Receipts.
Section 7.11 Confidentiality.
The Depositary and the Corporation agree that all books, records, information and data pertaining to the business of the other party, including, inter alia, personal, non-public Holder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement, shall remain confidential, and shall not be voluntarily disclosed to any other Person, except as may be required by law, rule, regulation or legal process.
Section 7.12 Further Assurances.
The Corporation shall perform, acknowledge and deliver or cause to be performed, acknowledged and delivered all such further and other acts, documents, instruments and assurances as may be reasonably required by the Depositary for the carrying out or performing by the Depositary of the provisions of this Agreement.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first above written.
| Xxxxxxx Financial Inc. | |||
| By: | /s/ Xxxxxx Xxxxxxx | ||
| Name: | Xxxxxx Xxxxxxx | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
[Signature Page to Deposit Agreement]
| EQUINITI TRUST COMPANY | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | SVP, Relationship Director | ||
[Signature Page to Deposit Agreement]
FORM OF RECEIPT
[FORM OF FACE OF RECEIPT]
Unless this receipt is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to Xxxxxxx Financial Inc. or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
| NUMBER DR-[ ] | [ ] DEPOSITARY SHARES |
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH
REPRESENTING A 1/1,000TH INTEREST IN ONE SHARE OF
Fixed-Rate Reset Noncumulative Perpetual Preferred Stock, Series A, OF
XXXXXXX FINANCIAL INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP 46817M 206
SEE REVERSE FOR CERTAIN DEFINITIONS
DIVIDEND PAYMENT DATES: BEGINNING JUNE 30, 2023, EACH MARCH 30, JUNE 30, SEPTEMBER 30 AND DECEMBER 30
Equiniti Trust Company, as Depositary (the “Depositary”), hereby certifies that Cede & Co. is the registered owner of [ ] DEPOSITARY SHARES (“Depositary Shares”), each Depositary Share representing a 1/1,000th interest in one share of Fixed-Rate Reset Noncumulative Perpetual Preferred Stock, Series A, $1.00 par value per share, $25,000 liquidation preference per share, of Xxxxxxx Financial Inc., a Delaware corporation (the “Corporation”), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement, dated as of March 13, 2023 (the “Agreement”), among the Corporation, the Depositary and the holders from time to time of the Depositary Receipts. By accepting this Depositary Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Agreement. This Depositary Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Agreement unless it shall have been executed by the Depositary by the manual, facsimile or electronic signature of a duly authorized officer or, if a Registrar in respect of the Depositary Receipts (other than the Depositary) shall have been appointed, by the manual, facsimile or electronic signature of a duly authorized officer thereof.
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Dated:
EQUINITI TRUST COMPANY, as Depositary
| By: | ||
| Name: | ||
| Title: | ||
A-2
[FORM OF REVERSE OF RECEIPT]
XXXXXXX FINANCIAL INC.
XXXXXXX FINANCIAL INC. WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE AGREEMENT AND A COPY OR SUMMARY OF THE CERTIFICATE OF DESIGNATIONS OF Fixed-Rate Reset Noncumulative Perpetual Preferred Stock, Series A, $1.00 par value per share, OF XXXXXXX FINANCIAL INC. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
The Corporation will furnish without charge to each receiptholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Corporation, and the qualifications, limitations or restrictions of such preferences and/or rights. Such request may be made to the Corporation or to the Transfer Agent.
EXPLANATION OF ABBREVIATIONS
The following abbreviations when used in the form of ownership on the face of this certificate shall be construed as though they were written out in full according to applicable laws or regulations. Abbreviations in addition to those appearing below may be used.
| Abbreviation | Equivalent Phrase | Abbreviation | Equivalent Phrase | |||
| JT TEN | As joint tenants, with right of survivorship and not as tenants in common | TEN BY ENT | As tenants by the entireties | |||
| TEN IN COM | As tenants in common | UNIF GIFT MIN ACT | Uniform Gifts to Minors Act |
| Abbreviation | Equivalent Word | Abbreviation | Equivalent Word | Abbreviation | Equivalent Word | |||||
| ADM | Administrator(s), Administratrix | EX | Executor(s), Executrix | PAR | Paragraph | |||||
| AGMT | Agreement | FBO | For the benefit of | PL | Public Law | |||||
| ART | Article | FDN | Foundation | TR | (As) trustee(s), for, of | |||||
| CH | Chapter | GDN | Guardian(s) | U | Under | |||||
| CUST | Custodian for | GDNSHP | Guardianship | UA | Under agreement | |||||
| DEC | Declaration | MIN | Minor(s) | UW | Under will of, Of will of, Under last will & testament | |||||
| EST | Estate, of Estate of |
For value received, hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the within Receipt, and do(es) 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 Receipt in every particular, without alteration or enlargement or any change whatsoever.
SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the Corporation’s transfer agent. Guarantees by a notary public are not acceptable.
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