EXHIBIT 4.16
DEPOSIT AGREEMENT
among
BANK OF AMERICA CORPORATION,
_____________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of __________, 20__
TABLE OF CONTENTS
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Page
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ARTICLE I Definitions
ARTICLE II Form of Receipts, Deposit of Shares, Execution, and Delivery,
Transfer, Surrender, and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts ...................................... 2
Section 2.2. Deposit of Shares; Execution and Delivery of Receipts in
Respect Thereof .................................................... 3
Section 2.3. Redemption of Shares ............................................... 4
Section 2.4. Registration of Transfer of Receipts ............................... 5
Section 2.5. Split-ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Shares ........................................... 5
Section 2.6. Limitations on Execution and Delivery, Transfer, Surrender,
and Exchange of Receipts ........................................... 6
Section 2.7. Lost Receipts, etc ................................................. 6
Section 2.8. Cancellation and Destruction of Surrendered Receipts ............... 6
ARTICLE III Certain Obligations of the Holders of Receipts and the Company
Section 3.1. Filing Proofs, Certificates, and Other information ................. 6
Section 3.2. Payment of Taxes or Other Governmental Charges ..................... 7
Section 3.3. Warranty as to Shares .............................................. 7
ARTICLE IV The Deposited Securities; Notices
Section 4.1. Cash Distributions ................................................. 7
Section 4.2. Distributions Other than Cash, Rights, Preferences, or
Privileges ......................................................... 7
Section 4.3. Subscription Rights, Preferences, or Privileges .................... 8
Section 4.4. Notice of Dividends, etc.; Fixing of Record Date for Holders of
Receipts ........................................................... 9
Section 4.5. Voting Rights ...................................................... 9
Section 4.6. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc ............................................. 10
Section 4.7. Inspection of Reports .............................................. 10
Section 4.8. Lists of Receipt Holders ........................................... 10
ARTICLE V The Depositary, the Depositary's Agents, the Registrar, and the
Company
Section 5.1. Maintenance of Offices, Agencies, and Transfer Books by the
Depositary; Registrar .............................................. 10
Section 5.2. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company .................. 11
Section 5.3. Obligations of the Depositary, the Depositary's Agents, the
Registrar, and the Company ......................................... 11
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TABLE OF CONTENTS
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(continued)
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Section 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary ....................................... 12
Section 5.5. Corporate Notices and Reports .............................. 13
Section 5.6. Indemnification by the Company ............................. 13
Section 5.7. Charges and Expenses ....................................... 13
ARTICLE VI Amendment and Termination
Section 6.1. Amendment .................................................. 13
Section 6.2. Termination ................................................ 14
ARTICLE VII Miscellaneous
Section 7.1. Counterparts ............................................... 14
Section 7.2. Exclusive Benefit of Parties ............................... 14
Section 7.3. Invalidity of Provisions ................................... 14
Section 7.4. Notices .................................................... 14
Section 7.5. Depositary's Agents ........................................ 15
Section 7.6. Holders of Receipts Are Parties ............................ 15
Section 7.7. Governing Law .............................................. 15
Section 7.8. Inspection of Deposit Agreement ............................ 15
Section 7.9. Headings ................................................... 15
Exhibit A Depositary Receipt ......................................... 17
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DEPOSIT AGREEMENT
dated as of __________, 20__,
among
BANK OF AMERICA CORPORATION,
a Delaware corporation,
____________________, a __________ ____________,
and the holders
from time to time of the Receipts
described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of BANK OF
AMERICA CORPORATION with the Depositary (as hereinafter defined) for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
Receipts (as hereinafter defined) evidencing Depositary Shares (as hereinafter
defined), in respect of the Shares (as hereinafter defined) 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 Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
The following definitions for all purposes, unless otherwise indicated,
shall apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate of Designation" shall mean the Certificate of Designation
filed with the Secretary of State of Delaware establishing the Shares as a
series of preferred stock of the Company.
"Company" shall mean Bank of America Corporation, a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean __________, a _____________, and any successor
as Depositary hereunder.
"Depositary Shares" shall mean depositary shares, each representing
[specify fraction] interest in a Share 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 principal office of the Depositary
in [The City of New York], at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form, substantially in the form set forth on
Exhibit A attached hereto with appropriate insertions, modifications, and
omissions as herein provided.
"Record Holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfer of Receipts as herein provided.
"Shares" shall mean shares of the Company's [insert designation of
preferred stock].
ARTICLE II
Form of Receipts, Deposit of Shares, Execution and Delivery,
Transfer, Surrender, and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts. Definitive Receipts may be
typewritten, photocopied, engraved, printed, or lithographed on steel-engraved
borders and shall be substantially in the form set forth in Exhibit A attached
to this Deposit Agreement and incorporated herein by reference, with appropriate
insertions, modifications, and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company or any holder of Shares, as the case may be, delivered in compliance
with Section 2.2, shall execute and deliver temporary Receipts which are
printed, lithographed, typewritten, photocopied, or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions, and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the office described in Section 2.2, without charge to the
holder. Upon surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Agreement, and with respect to the Shares, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are counter-signed by
manual signature of a duly authorized officer of the Registrar.
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No Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed manually
by a duly authorized officer of the Depositary or, if a Registrar for the
Receipts shall have been appointed, by manual or facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of __________ Depositary Shares for any
particular Receipt.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Shares, the Depositary
Shares, or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
At the election of the Company, Receipts may be issued in book-entry
only form registered in the name of Cede & Co. or such other name as may be
requested by the designated securities depositary.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.4, the
Depositary, notwithstanding any notice to the contrary, may treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
Section 2.2. Deposit of Shares; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company from time to time may deposit Shares under this Deposit Agreement by
delivery to the Depositary of a certificate or certificates for the Shares to be
deposited, properly endorsed or accompanied, if required by the Depositary, by a
duly executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order a Receipt or Receipts for the
number of Depositary Shares representing interests in such deposited Shares.
Deposited Shares shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Shares deposited in accordance with the provisions of this Section, together
with the other documents required as
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above specified, and upon recordation of the Shares on the books of the
registrar for the Shares in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt for the number of Depositary Shares relating to the
Shares so deposited and registered in such name or names as may be requested by
such person or persons. The Depositary shall execute and deliver such Receipt at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations, or other
reclassifications affecting the Shares, or in the case of dividends or other
distributions of Shares, if any, there shall be deposited hereunder not more
than __________ Shares.
Section 2.3. Redemption of Shares. Whenever the Company shall elect to
redeem Shares, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 40 nor more than 70 days' notice of the date
of such proposed redemption of Shares. On the date of such redemption, provided
that the Company shall then have paid in full to the Depositary the redemption
price of the Shares to be redeemed, the Depositary shall redeem the Depositary
Shares relating to such Shares. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number of Depositary
Shares representing the Shares to be redeemed, first-class postage prepaid, not
less than 30 and not more than 60 days prior to the date fixed for redemption of
such Shares 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 any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Shares underlying the Depositary
Shares to be redeemed will cease to accumulate at the close of business on the
business day next preceding such Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so
redeemed shall be selected by lot or pro rata (subject to rounding to avoid
fractions of the Depositary Shares) as may be determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
Shares to be redeemed by it as set forth in the Company's notice provided for in
the preceding paragraph), all dividends in respect of the Shares so called for
redemption shall cease to accumulate, the Depositary Shares being redeemed from
such proceeds shall be deemed no longer to be outstanding, all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price), to the extent of such Depositary Shares, shall
cease and terminate and, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary
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Shares shall be redeemed by the Depositary at a redemption price per Depositary
Share equal to [specify fraction] of the redemption price per share paid in
respect of the Shares plus all money and other property, if any, underlying such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the Shares to be so
redeemed and have not therefore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
Section 2.4. Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of 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. 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.
Section 2.5. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Shares. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
Shares may withdraw such Shares 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. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such holder as
hereinafter provided, the number of whole Shares and all money and other
property, if any, represented by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole Shares will not thereafter be entitled to
deposit such Shares hereunder or to receive Depositary Shares therefor. 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 to be so withdrawn,
the Depositary at the same time, in addition to such number of whole Shares and
such money and other property, if any, to be so withdrawn, shall 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. Delivery of the Shares and
money and other property, if any, being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate.
If the Shares 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
Receipt or Receipts being
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surrendered for withdrawal of Shares, 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 be properly endorsed in blank or accompanied by a
properly executed instrument of transfer in blank
Delivery of the Shares 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.
Section 2.6. Limitations on Execution and Delivery, Transfer,
Surrender, and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender, or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require (a) payment to it of a sum sufficient for the payment (or,
in the event that the Depositary or the Company shall have made such payment,
the reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, (b) the production of evidence satisfactory to
it as to the identity and genuineness of any signature, and (c) compliance with
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Shares may be refused, the delivery of Receipts against
Shares 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 shareholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
Section 2.7. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost, or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost, or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
Section 2.8. 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, any cancelled Receipts held by the Depositary shall be delivered to
the Company or disposed of as directed by the Company.
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ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
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 Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any 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 and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments, or
other distributions may be withheld or all or any part of the Shares 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.
Section 3.3. Warranty as to Shares. The Company hereby represents and
warrants that the Shares, when issued, will be validly issued, fully paid, and
nonassessable. Such representation and warranty shall survive the deposit of the
Shares and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
Section 0.0.Xxxx Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution with respect to Shares, the
Depositary, subject to Sections 3.1 and 3.2, shall 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 Company or the Depositary
shall be required to withhold and shall withhold from any cash dividend or other
cash distribution in respect of the Shares an amount on account of taxes, and
the amount made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly. The Depositary shall distribute
or make available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any holder of Depositary
Shares a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest
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thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
Section 4.2. Distributions Other than Cash, Rights, Preferences, or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences, or privileges described in Section 4.3 with respect
to Shares, 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 the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such Record Holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary, with the approval of the
Company, may adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale, subject to Sections 3.1 and 3.2, shall be distributed or made
available for distribution, as the case may be, by the Depositary to Record
Holders of Receipts as provided by Section 4.1 in the case of a distribution
received in cash.
The Depositary shall not make any distribution of securities received
in respect of the Shares unless the Company shall have provided an opinion of
counsel stating that the securities have been registered under the Securities
Act of 1933, as amended, or do not need to be so registered.
Section 4.3. Subscription Rights, Preferences, or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Shares are recorded on the books of the Company any rights, preferences,
or privileges to subscribe for or to purchase any securities or any rights,
preferences, or privileges of any other nature, such rights, preferences, or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Receipts in such manner as the Depositary may determine,
either by the issue of warrants representing such rights, preferences, or
privileges or by such other method as may be approved by the Depositary in its
discretion with the approval of the Company to such Record Holders; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences, or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences, or privileges available to holders of 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 Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences, or privileges available), if applicable laws or the terms
of such rights, preferences, or privileges permit such transfer, may sell (at
public or private sale) such rights, preferences, or privileges at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale, subject to Sections 3.1 and 3.2, shall be distributed by the Depositary 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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If registration under the Securities Act of 1933, as amended, of the
securities to which any rights, preferences, or privileges relate is required in
order for holders of Receipts to be offered or sold the securities to which such
rights, preferences, or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant to such
Act with respect to such rights, preferences, or privileges and securities and
use its best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences, or privileges to enable such holders to
exercise such rights, preferences, or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference, or
privilege to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective, or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent, or permit is required in order for
such rights, preferences, or privileges to be made available to holders of
Receipts, the Company agrees with the Depositary that the Company will use its
best efforts to take such action or obtain such authorization, consent, or
permit sufficiently in advance of the expiration of such rights, preferences, or
privileges to enable such holders to exercise such rights, preferences, or
privileges.
Section 4.4. Notice of Dividends, etc.; Fixing of 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 Shares,
or whenever the Depositary shall receive notice of any meeting at which holders
of Shares are entitled to vote or of which holders of Shares are entitled to
notice or whenever the Depositary and the Company 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 Company with respect to
the Shares) for the determination of holders of Receipts who shall be entitled
hereunder 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 0.0.Xxxxxx Rights. Upon receipt of notice of any meeting at which
the holders of Shares are entitled to vote, the Depositary, as soon as
practicable thereafter, shall mail to the Record Holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the holders may instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Shares underlying
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 Company) and a brief statement as to the manner in
which such instructions may be given. Upon the written request of Record Holders
of Receipts as of such record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum number of whole Shares underlying the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the
9
Depositary to vote such Shares or cause such Shares to be voted. In the absence
of specific instructions from a Record Holder of a Receipt, the Depositary will
abstain from voting (but, at its discretion, not from appearing at any meeting
with respect to such Shares unless directed to the contrary by the holders of
all the Receipts) to the extent of the Shares representing the Depositary Shares
evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. Upon any change in par or stated value, split-up,
combination, or any other reclassification of the Shares, or upon any
recapitalization, reorganization, merger or consolidation, or similar
transaction or the sale of all or substantially all the Company's assets
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval of, and upon the instructions of, the Company, and
(in either case) in such manner as the Depositary may deem equitable, (i) shall
make such adjustments [as are certified by the Company] in (a) the fraction of
an interest in one Share underlying one Depositary Share and (b) the ratio of
the redemption price per Depositary Share to the redemption price of a Share, in
each case as may be necessary fully to reflect the effects of such change in par
or stated value, split-up, combination, or other reclassification of Shares, or
of such recapitalization, reorganization, merger, or consolidation or sale and
(ii) shall treat any securities which shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Shares as new deposited
securities so received in exchange for or upon conversion or in respect of such
Shares. In any such case the Depositary may in its discretion, with the approval
of the Company, execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities.
Section 4.7. Inspection 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, any reports and
communications received from the Company which are received by the Depositary as
the holder of Shares.
Section 4.8. Lists of Receipt Holders. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of a recent
date, of the names, addresses, and holdings of Depositary Shares of all persons
in whose names Receipts are registered on the books of the Depositary or
Registrar, as the case may be.
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar, and the Company
Section 5.1. Maintenance of Offices, Agencies, and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's 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 Deposit Agreement.
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The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the Record Holders of Receipts;
provided, however, that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary, with the approval of the Company, may appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby.
If the Receipts or the Depositary Shares evidenced thereby or the Shares
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, Inc., the Depositary, with the approval of the Company, shall appoint
a Registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares in accordance with any requirements of such Exchange. Such
Registrar (which may be the Depositary if so permitted by the requirements of
such Exchange) may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company. If the
Receipts, such Depositary Shares or such Shares are listed on one or more other
stock exchanges, the Depositary, at the request of the Company, will arrange
such facilities for the delivery, registration, registration of transfer,
surrender, and exchange of such Receipts, such Depositary Shares, or such Shares
as may be required by law or applicable stock exchange regulation.
Section 5.2. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar, or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Amended and Restated Articles of Incorporation 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
Company 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 Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar, or the Company incur any liability to any
holder of a 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
Deposit Agreement provide shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the gross negligence or willful
misconduct of the party charged with such exercise or failure to exercise.
Section 5.3. Obligations of the Depositary, the Depositary's Agents, the
Registrar, and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the
11
Company assumes any obligation or shall be subject to any liability under this
Deposit Agreement to holders of Receipts other than for its gross negligence or
willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit, or other proceeding in respect of the Shares, the Depositary
Shares, or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Shares for deposit, any holder of a Receipt or any other
person believed by it in good faith to be competent to give such information.
The Depositary, any Depositary's Agent, any Registrar, and the Company may each
rely and shall each be protected in acting upon any written notice, request,
direction, or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the Shares or for the manner or effect of any such
vote, as long as any such action or nonaction is in good faith. The Depositary
undertakes, and any Registrar shall be required to undertake, to perform such
duties and only such duties as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this Agreement against
the Depositary or any Registrar. The Depositary will indemnify the Company
against any liability which may arise out of acts performed or omitted by the
Depositary or its agents due to its or their negligence or bad faith. The
Depositary, the Depositary's Agents, any Registrar, and the Company may own and
deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary also may act as transfer agent or registrar or any of
the securities of the Company and its affiliates.
Section 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary at any time may resign as Depositary
hereunder by notice of its election so to be delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary at any time may be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect only upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, shall appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $5,000,000. If no successor Depositary shall have been so appointed and
have accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent jurisdiction
for the appointment of a successor Depositary. Every successor Depositary shall
execute and deliver to its predecessor and to the Company an
12
instrument in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor and for
all purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the
Company, shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign,
transfer, and deliver all right, title, and interest in the Shares and any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the Record Holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appointment to the Record
Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated, or converted shall be the successor of such 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 in the name of the
successor Depositary.
Section 5.5. Corporate Notices and Reports. The Company agrees that it will
transmit to the Record Holders of Receipts, in each case at the address
furnished to it pursuant to Section 4.8, all notices and reports (including
without limitation financial statements) required by law, the rules of any
national securities exchange upon which the Shares, the Depositary Shares, or
the Receipts are listed or by the Company's Restated Amended and Restated
Articles of Incorporation to be furnished by the Company to holders of Shares.
Such transmission will be at the Company's expense.
Section 5.6. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent, and any Registrar against, and hold each
of them harmless from, any loss, liability, or expense (including the costs and
expenses of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Agreement and the Receipts (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence or bad
faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale, or registration of the
Receipts or the Shares pursuant to the provisions hereof.
Section 5.7. Charges and Expenses. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Shares and the initial issuance of
the Depositary Shares, and redemption of the Shares at the option of the
Company. All other transfer and other taxes and governmental charges shall be at
the expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for
13
charges and expenses to the Company once every three months or at such other
intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
Section 6.1. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement at any time and from time to time may be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of 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 Deposit Agreement as amended thereby.
Section 6.2. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.3 or (ii) there shall have been made a
final distribution in respect of the Shares in connection with any liquidation,
dissolution, or winding up of the Company.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.6 and 5.7.
ARTICLE VII
Miscellaneous
Section 7.1. Counterparts. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
Section 7.2. Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal, or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced, or disturbed thereby.
Section 7.4. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at
14
Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Corporate Treasury Division, or at
any other address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at
________________________________, or at any other address of which the
Depositary shall have notified the Company in writing.
Any and all notices to be given to any Record Holder of a 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 or by telegram or telex
confirmed by letter, addressed to such Record Holder at the address of such
Record Holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company, however, may act upon any telegram or telex message received by it from
the other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
Section 7.5. Depositary's Agents. The Depositary from time to time may
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and at any time may appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
Section 7.6. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
Section 7.7. Governing Law. This Deposit Agreement and the receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the state of [New
York], notwithstanding any otherwise applicable conflicts of law principles.
Section 7.8. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
Section 7.9. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have
15
any bearing upon the meaning or interpretation of any provision contained herein
or in the Receipts.
16
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
BANK OF AMERICA CORPORATION
By:______________________________________
Title:__________ Vice President
_________________________________________
[DEPOSITARY]
By:______________________________________
Authorized Officer
Title:___________________________________
17
EXHIBIT A
BANK OF AMERICA CORPORATION
(FORM OF FACE OF RECEIPT)
NEITHER THE DEPOSITARY SHARES NOR THE SHARES (EACH AS DEFINED BELOW) ARE
DEPOSITS OF BANK OF AMERICA CORPORATION OR ANY BANKING SUBSIDIARY THEREOF AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY.
[TEMPORARY RECEIPT - Exchangeable for Definitive Receipt When Ready for
Delivery]
NUMBER _____ DEPOSITARY SHARES
CERTIFICATE FOR (NOT MORE THAN) __________ DEPOSITARY SHARES
TDR- ____ [CUSIP __________]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK, SERIES ___ OF
BANK OF AMERICA CORPORATION
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
SEE REVERSE FOR
CERTAIN DEFINITIONS
_____________________, as Depositary (the "Depositary"), hereby certifies that
______________ is the registered owner of _______________ DEPOSITARY SHARES
("Depository Shares"), each Depositary Share representing [specify fraction] of
one share of Preferred Stock, Series ___, par value _______ (the "Shares"), of
Bank of America Corporation, 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 ____________, 20___ (the "Deposit
Agreement"), between the Corporation and the Depositary. 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 Deposit Agreement. [The Shares and
Depositary Shares are redeemable on and after _____________, 20___, at the
option of the Corporation.] This Depositary Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by the manual signature of a duly authorized officer thereof.
18
Dated: Countersigned:
_______________________ _______________________ ___________________________
Depositary Registrar Transfer Agent
By:____________________ By:____________________ [By:______________________]
Authorized Officer Authorized Officer Authorized Officer
19
[FORM OF REVERSE OF RECEIPT]
BANK OF AMERICA CORPORATION
BANK OF AMERICA CORPORATION WILL, UPON REQUEST, FURNISH ANY HOLDER OF A
RECEIPT WITHOUT CHARGE A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE
PORTIONS OF THE CERTIFICATE OF DESIGNATION OR RESOLUTIONS CONTAINING THE
DESIGNATIONS, PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF ALL SHARES AND
ANY CLASS OR SERIES THEREOF. [ANY SUCH REQUEST IS TO BE ADDRESSED TO THE
TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.]
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- __________ Custodian
(Cust) (Min)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors Act _______
(State)
JT TEN -- as joint tenants with right of
survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
For value received, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address; including postal zip code of
Assignee)
__________________________Depositary Shares represented by the within receipt,
and do hereby irrevocably constitute and appoint __________________________
Attorney to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated:_______________________ ________________________________________
NOTICE: The signature to this assignment
Signature Guaranteed: must correspond with the name as written
upon the face of this Receipt in every
_____________________________ particular, without alteration or enlargement
_____________________________ or any change whatever
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