EXHIBIT (4)(b)
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of February 24, 1992, among Fourth Financial
Corporation, a corporation duly organized and existing under the laws of the
State of Kansas (the "Company"), BANK IV Kansas, National Association, a
national banking association, as depositary (the "Depositary"), and the holders
from time to time of Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to provide for the deposit with the
Depositary of shares of Class A Cumulative Convertible Preferred Stock, $100 par
value, of the Company, and for the issuance of receipts evidencing fractional
interests in such shares; and
WHEREAS, the parties further desire that the Depositary act as registrar,
transfer agent and depositary with respect to the said receipts.
NOW, THEREFORE, in consideration of the premises, it is agreed by and among
the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise indicated,
apply to the respective terms used in this Deposit Agreement and the Receipts:
The term "Certificate of Designation" shall mean the Certificate of
Designation adopted by the Company's Board of Directors or a duly authorized
committee thereof setting forth the number, terms, powers, designations, rights,
preferences, qualifications, restrictions and limitations of the Stock, attached
hereto as Exhibit A.
The term "Articles of Incorporation" shall mean the Restated Articles of
Incorporation, as amended from time to time, of the Company.
The term "Common Stock" shall mean the common stock, value $5.00 per share,
of the Company or any security into which the Common Stock may be converted.
The term "Company" shall mean Fourth Financial Corporation, incorporated
under the laws of the State of Kansas and its successors.
The term "Deposit Agreement" shall mean this Agreement, as amended or
supplemented from time to time.
The term "Depositary" shall mean BANK IV Kansas, National Association, a
national banking association, and any successor in its role as Depositary,
Registrar and Transfer Agent hereunder.
The term "Depositary Shares" shall mean the Depositary Shares evidenced by
the Receipts. Each Depositary Share shall, as provided herein, represent a
1/16th interest in a share of Stock. Subject to
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the terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionate to the fractional interest in a share of Deposited Stock
underlying such Depositary Share, to all the rights and preferences of the Stock
represented thereby, including dividend, voting, conversion, redemption and
liquidation rights.
The term "Depositary's Agent" shall mean an agent appointed by the Depositary
as provided, and for the purpose specified, in Section 7.05.
The term "Deposited Stock" shall mean the shares of Stock which are at the
time of determination held by the Depositary hereunder.
The term "Exchange Act" shall mean the Securities Exchange Act of 1934, as
from time to time amended.
The term "Receipt" shall mean one or more of the depositary receipts issued
hereunder, whether in definitive or temporary form, substantially in the form of
Exhibit B hereto.
The term "record date" shall mean the date fixed pursuant to Section 4.04.
The term "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.
The term "Redemption Date" shall have the meaning set forth in Section 2.03
hereof.
The term "Registrar" shall mean BANK IV Kansas, National Association, or any
bank or trust company which shall be appointed to register ownership and
transfers of Receipts as herein provided.
The term "Registration Statement" shall mean the Registration Statement on
Form S-3 of the Company (Registration No. 33-45414), as amended by Amendment No.
1, declared effective on February 13, 1992 relating to the offering of the
Depositary Shares.
The term "Securities Act" shall mean the Securities Act of 1933, as from time
to time amended.
The term "Securities Division" shall mean the principal office of the
Depositary in Wichita, Kansas, at which at any particular time its corporate
trust business shall have responsibilities for the administration of this
Agreement and obligations hereunder.
The term "Stock" shall mean shares of the Company's Class A Cumulative
Convertible Preferred Stock, par value $100 per share.
The term "Transfer Agent" shall mean BANK IV Kansas, National Association, or
any bank or trust company which shall be appointed to transfer the Receipts as
herein provided.
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ARTICLE II
DEPOSIT OF STOCK; FORM, EXECUTION,
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. DEPOSIT OF STOCK: EXECUTION AND DELIVERY OF RECEIPTS IN
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RESPECT THEREOF. Concurrently with the execution and delivery of this Deposit
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Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing 250,000
shares of the Stock, together with (i) all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and (ii) a written order of the Company directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the 4,000,000 Depositary Shares
representing such Deposited Stock. The certificate or certificates evidencing
the Deposited Stock shall be held by the Depositary, at its Securities Division
or at such other place or places as the Depositary shall determine. The Company
hereby authorizes the Depositary, in its capacity as Transfer Agent and
Registrar for the Stock, to reflect changes in the number of shares (including
any fractional shares) of Deposited Stock from time to time held by the
Depositary by notation, book entry or other appropriate method and the
Depositary, in its capacity as aforesaid, agrees to furnish the Company with
regular reports as to the number of shares of Deposited Stock from time to time
held under this Deposit Agreement.
Subject to the terms and conditions of this Deposit Agreement, Stock may also
be deposited hereunder in connection with the delivery of Receipts to represent
distributions under Section 4.02 and upon exercise of the rights to subscribe
referred to in Section 4.03.
The Depositary hereby acknowledges delivery of the Deposited Stock together
with the other documents required as above specified and, concurrently with such
delivery, has caused to be delivered, to or upon the order of the Company, one
or more Receipts evidencing the 4,000,000 Depositary Shares which represent all
of the fractional interests in the Deposited Stock, in such denominations and
registered in such name or names as are specified in such Company order.
SECTION 2.02. FORM AND TRANSFERABILITY OF RECEIPTS. The definitive Receipts
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shall be substantially in the form set forth in Exhibit B annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided and shall be engraved or otherwise prepared so as to comply
with applicable rules of the National Association of Securities Dealers
Automated Quotation National Market System ("NASDAQ/NMS") or any securities
exchange upon which the Stock, the Depositary Shares or the Receipts may be
included for quotation or listed. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company delivered in
compliance with Section 2.01, shall issue, execute and deliver temporary
Receipts substantially in the form set forth in Exhibit B annexed to this
Deposit Agreement 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 Depositary may determine. 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
or agency of the Depositary maintained for such purpose, without charge to the
holder. Upon surrender for cancellation of any one or more temporary Receipts,
the Depositary shall issue, 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
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shall be made at the Company's expense and without any charge therefor. Until
so exchanged, the holders of temporary Receipts shall in all respects be
entitled to the same benefits under this Deposit Agreement, and with respect to
the Stock, as holders of definitive Receipts.
Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. 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 or by facsimile by
a duly authorized officer of the Depositary or, if a Registrar for the Receipts
(other than the Depositary) 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. Receipts executed as
provided in this section may be issued notwithstanding the fact that any
authorized officer of the Depositary authenticating such Receipts shall have
ceased to hold office at the time of issuance of such Receipts. The Depositary
shall record on its books each Receipt so signed and delivered as hereafter
provided.
Receipts shall be in denominations of any number of Depositary Shares
representing fractional interests in the Stock in even multiples of 1/16th of a
share of Stock. All Receipts shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary, or by the rules and
regulations of the NASDAQ/NMS or any securities exchange upon which the Stock,
the Depositary Shares or the Receipts may be included for quotation or listed or
to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject.
Title to the 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 2.05, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions, the exercise of conversion rights or to any notice provided for
in this Deposit Agreement and for all other purposes.
SECTION 2.03. REDEMPTION OF STOCK. The Company agrees that whenever it
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shall elect to redeem shares of Stock in accordance with the provisions of the
Articles of Incorporation and Certificate of Designation, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary at least 60
days' notice of the date of such proposed redemption of Stock (the "Redemption
Date") and of the number of shares of Deposited Stock to be so redeemed and the
applicable redemption price, as set forth in the Articles of Incorporation and
Certificate of Designation, including the amount, if any, of accrued and unpaid
dividends to the date of such redemption on the Redemption Date, provided that
the Company shall then have paid in full to the Depositary the redemption price
of the Stock to be redeemed (including any accrued and unpaid dividends to the
date of redemption), the Depositary shall redeem, as of the Redemption Date, the
number of Depositary Shares representing the shares of Deposited Stock so called
for redemption by the Company. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number of Depositary
Shares representing the Deposited Stock to be redeemed, first-class postage
prepaid, not less than 30 and not more than 60 days prior to the Redemption
Date, to the holders of record (determined pursuant to Section 4.04) of the
Receipts evidencing the
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Depositary Shares representing the Deposited Stock 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 provided
to the Depositary by the Company shall state the Redemption Date; that the right
to convert Stock into shares of Common Stock will expire at the close of
business on the 10th day preceding the Redemption Date; the number of Depositary
Shares to be redeemed; the redemption price; the place or places where Receipts
evidencing Depositary Shares to be redeemed are to be surrendered for payment of
the redemption price; and that dividends in respect of the Deposited Stock and
the Depositary Shares to be redeemed will cease to accumulate at the close of
business on the 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 (as nearly as may be) as may be determined
by the Depositary.
Notice having been mailed by the Depositary as aforesaid (a) after the 10th
day preceding the Redemption Date (unless the Company shall fail to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) the conversion rights in respect of the
shares of Stock called for redemption on such Redemption Date will terminate,
and (b) all dividends in respect of the shares of Stock so called for redemption
shall cease to accrue, the Depositary Shares being redeemed 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 and any
money or other property to which the holders of such Depositary Shares were
entitled upon such redemption) shall cease and terminate and, upon surrender in
accordance with said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so require
or if required by law), such Depositary Shares shall be redeemed by the
Depositary at a redemption price per Depositary Share equal to 1/16th (as such
fraction may from time to time be adjusted, in certain events, so as to equal at
all times the fraction of an interest represented by one Depositary Share in one
share of Stock) of the redemption price per share plus all money and other
property, if any (including amounts in respect of accrued and unpaid dividends)
has been paid in respect of the shares of Stock represented by such Depositary
Shares.
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, without
service charge, upon its surrender to the Depositary, a new Receipt, together
with the redemption payment, evidencing the Depositary Shares evidenced by such
prior Receipt that were not called for redemption.
SECTION 2.04. CONVERSION OF STOCK INTO COMMON STOCK. The Company hereby
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agrees to accept the delivery of Receipts for purposes of effecting conversions
of the Deposited Stock utilizing the same procedures as those provided for
delivery of certificates for the Stock to effect such conversions in accordance
with the terms and conditions of the Stock as provided in the Certificate of
Designation. Any whole number of Depositary Shares (whether or not evenly
divisible by 16) represented by a Receipt may be surrendered for conversion. If
the Depositary Shares represented by a Receipt are to be converted in part only,
a new Receipt or Receipts will be issued by the Depositary for the Depositary
Shares not to be converted. No fractional shares of Common Stock will be issued
upon conversion, and if such conversion will result in a fractional share being
issued, an amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common Stock on the last
business day prior to the conversion. For this purpose, a holder of a Receipt
or Receipts must surrender such Receipt or Receipts to the Company, together
with a duly completed and executed Notice of Conversion in the form included in
the Receipt. In all cases the foregoing shall be conditioned upon
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compliance in full by the holders with the applicable terms and conditions of
the Stock as provided in the Certificate of Designation and of this Deposit
Agreement. The Company and the Depositary will thereafter effect the
cancellation of each Receipt surrendered for such conversion and of the related
Deposited Stock so converted. In the event that the conversion of Depositary
Shares results in issuance of a fraction of a share of Stock, the Depositary
will make appropriate adjustment in its records (as contemplated in Section
2.01) to reflect such issuance and, if appropriate, the combination of any
fractions of shares into one or more whole shares of Stock.
Upon conversion no adjustments will be made for accrued dividends and,
therefore, Depositary Shares surrendered for conversion after the record date
next preceding a dividend payment date for the Deposited Stock and prior to such
dividend payment date must be accompanied by payment of an amount equal to the
applicable fraction of the dividend thereon which is to be paid on such dividend
payment date (unless the Depositary Shares surrendered for conversion have been
called for redemption prior to such dividend payment date). No adjustment of
the conversion price will be required to be made in any case until cumulative
adjustment amounts to 1% or more of the conversion price.
SECTION 2.05. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms
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and conditions of this Deposit Agreement, the Depositary, as Registrar and
Transfer Agent for the Depositary Shares, 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, and duly stamped 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.
SECTION 2.06. COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon surrender of a
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Receipt or Receipts at the Depositary's Securities Division 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 denominations requested evidencing the
same aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
SECTION 2.07. SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED STOCK.
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Unless the related Depositary Shares have previously been called for redemption,
any holder of a Receipt or Receipts representing any number of whole shares of
Stock may withdraw the Deposited Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Securities Division. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Stock and
all money, if any, and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal. 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 Deposited Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of whole shares of Stock and
such money, if any, and other property, if any, to be so withdrawn, deliver to
such holder, or (subject to Section 2.05) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. In no event will fractional
shares of Stock (except as represented by Depositary Shares) be distributed by
the Depositary. Delivery of the Stock and money being withdrawn may be made by
the delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate, which, if required by law, shall be
properly endorsed or accompanied by proper instruments of transfer.
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HOLDERS ACKNOWLEDGE THAT THERE WILL BE NO MARKET FOR THE UNDERLYING DEPOSITED
STOCK AND THAT UPON WITHDRAWAL OF THE DEPOSITED STOCK HOLDERS THEREOF WILL NOT
BE ENTITLED THEREAFTER TO DEPOSIT SUCH STOCK UNDER THIS DEPOSIT AGREEMENT.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Deposited 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 Deposited Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer in blank.
Delivery of the Stock and the money and other property, if any, represented
by Receipts surrendered for withdrawal shall be made by the Depositary at its
Securities Division, 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 2.08. LIMITATIONS ON EXECUTION AND DELIVERY OF RECEIPTS. As a
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condition precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or redemption of any Receipt, or the exercise
of any conversion right, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charge or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement
as may be required by the rules and regulations of the NASDAQ/NMS or any
securities exchange upon which the Stock, the Depositary Shares or the Receipts
may be included for quotation or listed.
The exercise of any conversion right may be suspended, or the registration of
transfer, surrender or redemption of outstanding Receipts may be suspended (a)
during any period when the register of holders of the Stock or of the Common
Stock of the Company is closed, or (b) if any such action is deemed reasonably
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.09. LOST RECEIPTS, ETC. In case any Receipt shall be mutilated,
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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
destroyed, lost or stolen Receipt, upon (i) the filing by the holder thereof
with the Depositary of evidence of such destruction or loss or theft of such
Receipt, of the authenticity thereof and of his ownership thereof, such evidence
being reasonably satisfactory to both the Depositary and the Company, and (ii)
the furnishing to the Depositary of an indemnity in accordance with the
Depositary's ordinary standard practice.
SECTION 2.10. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
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Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. The Depositary is authorized to turn over such
cancelled Receipts to the Company unless the Company instructs the Depositary to
destroy such Receipts.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any holder
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of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, and to execute such certificates and to
make such representations and warranties as the Depositary or the Company may
reasonably deem necessary and proper. The Depositary or the Company may
withhold the delivery or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Deposited Stock represented by
the Depositary Shares evidenced by any Receipt or the distribution of any
dividend or other distribution or the sale of any rights or of the proceeds
thereof or the exercise of any conversion right until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. As and to the
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extent required by the Certificate of Designation, Holders of Receipts shall be
obligated to make payments to the Depositary of certain charges and expenses, as
further provided in Section 5.07. Registration of transfer of any Receipt or any
withdrawal of Deposited Stock 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, and any conversion right may be refused, or
any part or all of the Deposited 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.
SECTION 3.03. WARRANTY AS TO STOCK. The Company represents and warrants
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that the Stock is validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock and the
issuance of Receipts.
SECTION 3.04. COVENANTS AND WARRANTIES AS TO COMMON STOCK. The Company
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covenants that it will keep reserved or otherwise available a sufficient number
of authorized and unissued shares of Common Stock to meet conversion
requirements in respect of the Deposited Stock and that it will give written
notice to the Depositary of any adjustments in the conversion price made
pursuant to the Certificate of Designation. The Company represents and warrants
that the Common Stock issued upon conversion of the Deposited Stock will be
validly issued, fully paid and non-assessable.
ARTICLE IV
THE DEPOSITED STOCK; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive any
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cash dividend or other cash distribution on the Deposited Stock, the Depositary
shall, subject to Section 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided, however, that,
in case the Company or the Depositary
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shall be required to withhold and shall withhold from any cash dividend or other
cash distribution in respect of the Deposited Stock an amount on account of
taxes, the amount made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly. In the event such withholding
is required as to only a portion but not all of the holders of Depositary
Shares, the reduced amount available for distribution shall be chargeable only
to those holders requiring such withholding. The Depositary shall distribute or
make available for distribution, as the case any be, only such amount, however,
as can be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary shall
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receive any distribution other than cash on the Deposited Stock, the Depositary
shall, subject to Section 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of such distribution
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 Depositary or the Company
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of such distribution thus received, or any part
thereof, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to section 3.02, be distributed or
made available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of securities on
or in respect of the Stock to holders of Depositary Shares unless the Company
shall have provided to the Depositary an opinion of counsel (which may be in-
house counsel) stating that such securities have been registered under the
Securities Act or are to be issued in a transaction which is exempt from the
registration requirements thereof.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
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Company shall at any time offer or cause to be offered to the persons in whose
names Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall instruct,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be directed by the
Company; provided, however, that (a) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines upon advice of
its legal counsel that it is not lawful or (after consultation with the Company)
feasible to make such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (b) 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, (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available) may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights preferences or privileges at public or private sale
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall be, subject to Sections 3.01 and 3.02,
distributed by the Depositary to the record holders of Receipts entitled
9
thereto as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of any such rights,
preferences or privileges on or in respect of the Stock to holders of Depositary
Shares unless the Company shall have provided to the Depositary an opinion of
counsel (which may be in-house counsel) stating that such rights, preferences or
privileges have been registered under the Securities Act or are to be issued in
a transaction which is exempt from the registration requirements thereof.
If registration under the Securities Act 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 reasonably available to it to cause such registration to become
effective so as 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 the Depositary has received an opinion of counsel
(which may be in-house counsel), stating that no 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 either (a) such a registration
statement shall have become effective or (b) the offering and sale of such
securities to such holders are exempt from registration under the provisions of
the Securities 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 4.04. NOTICE OF DIVIDENDS; 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 the
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of the Stock are entitled to vote or of which holders of the Stock are
entitled to notice, or wherever 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 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. The Company shall
give the Depositary not less than 10 days' notice prior to fixing any record
date with respect to the Stock for any of the aforementioned purposes.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting at which
-------------
the holders of the Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (a) such information as is contained in such notice of meeting and
(b) a statement that the holders of Receipts may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Deposited Stock represented by their respective
Depositary Shares and a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Receipt on
such record date, the
10
Depositary shall endeavor insofar as practicable to vote or cause to be voted
the shares of Deposited Stock represented by the Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. To
the extent any such instructions request the voting of a fraction of a share of
Deposited Stock, the Depositary shall aggregate such fraction with all other
fractions resulting from requests with the same voting instructions and shall
vote the number of whole shares resulting from such aggregation in accordance
with the instructions received in such requests. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Deposited Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting (but, at its discretion, not from
appearing at any meeting with respect to the Stock unless directed to the
contrary by the holders of Receipts evidencing a majority of the Depositary
Shares) to the extent of the Deposited Stock represented by the Depositary
Shares evidenced by such Receipt. The Company also agrees that it will at all
times comply with the proxy rules of the Exchange Act and with the rules and
regulations of the NASDAQ/NMS or of any securities exchange upon which the
Stock, the Depositary Shares or the Receipts may be included for quotation or
listed.
SECTION 4.06. CHANGES AFFECTING DEPOSITED STOCK AND RECLASSIFICATIONS,
------------ --------------------------------------------------------
RECAPITALIZATIONS, ETC. Upon any change in par or stated value, split-up,
----------------------
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, consolidation or sale of all or
substantially all the Company's assets affecting the Company or to which it is a
party, the Depositary may with the approval of the Company, and shall upon the
specific instructions of the Company, (a) make such adjustments in (i) the
fraction of an interest represented by one Depositary Share in one share of
Stock and (ii) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be required by or as
is consistent with the provisions of the Certificate of Designation to fully
reflect the effects of such change in liquidation value, split-up, combination
or other reclassification of Stock, or of such recapitalization, reorganization,
merger, consolidation or sale and (b) treat any securities which shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Stock as new deposited securities under this Deposit Agreement, and
Receipts then outstanding shall thereafter represent such new deposited
securities. In any such case the Depositary may, 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. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and after the
effective date of any such change in par or stated value, split-up, combination
or other reclassification of the Stock or any such recapitalization,
reorganization, merger, consolidation or sale of substantially all the assets of
the Company to surrender such Receipts to the Depositary with instructions to
convert, exchange or surrender the Stock represented thereby only into or for,
as the case may be, the kind and amount of shares of stock and other securities
and cash into which the Deposited Stock evidenced by such Receipts might have
been converted or for which such Deposited Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction. The
Company shall cause effective provision to be made in the charter of the
resulting or surviving corporation (if other than the Company) for protection of
such rights as may be applicable upon exchange of such Stock for securities or
property or cash of the surviving corporation in connection with the
transactions set forth above. The Company shall cause any such surviving
corporation (if other than the Company) expressly to assume the obligations of
the Company hereunder.
SECTION 4.07. REPORTS. The Depositary shall make available for inspection
------------ -------
by holders of Receipts at its Securities Division and at such other places as it
may from time to time deem advisable, any reports and communications received
from the Company which are both (a) received by the
11
Depositary as the holder of Deposited Stock and (b) made generally available to
the holders of Stock by the Company. In addition, the Depositary shall transmit
certain notices and reports to the registered holders of Receipts as provided in
Section 5.05.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from time to
------------ ------------------------
time by the Company, the Depositary shall furnish to it a list, as of a recent
date, of the names, addresses and holdings of Deposited Stock by all persons in
whose names Receipts are registered on the books of the Depositary.
SECTION 4.09. REQUEST OF HOLDERS. The Depositary, upon request, shall
------------ ------------------
furnish the holders of Depositary Shares with copies of the Company's Articles
of Incorporation, the Certificate of Designation and the Deposit Agreement.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER BOOKS BY THE
------------ -------------------------------------------------------
DEPOSITARY; REGISTRATION. The Depositary shall maintain at its Securities
------------------------
Division facilities for the execution and delivery, transfer, surrender and
redemption of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and redemption of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at its Securities Division 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 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.
If the Receipts or the Depositary Shares evidenced thereby or the Deposited
Stock represented by such Depositary Shares shall be included for quotation on
the NASDAQ/NMS, the Company may, if necessary to conform to the rules and
regulations of the included for quotation on the NASDAQ/NMS or any securities
exchange upon which the Stock, the Depositary Shares or the Receipts may be
included for quotation or listed, appoint a Registrar for registration of such
Receipts or Depositary Shares in accordance with any requirements of such
Exchange. Such Registrar (which may be the Depositary if so permitted by the
requirements of the NASDAQ/NMS or 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 Deposited Stock
are included for quotation on NASDAQ/NMS or listed on one or more other stock
exchanges, the Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange of such Receipts, such Depositary Shares or such Stock as may be
required by law, by NASDAQ/NMS or by applicable stock exchange regulation.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
------------ ---------------------------------------------------------
DEPOSITARY'S AGENTS OR THE COMPANY. Neither the Depositary nor any Depositary's
----------------------------------
Agent nor the Company shall incur any liability to any holder of any Receipt, if
(i) 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
12
case of the Depositary or the Depositary's Agent, by reason of any provision,
present or future, of the Articles of Incorporation or Certificate of
Designation, or (ii) 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
or the Company shall be prevented or forbidden from 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 or the Company incur
any liability to any holder of a Receipt by reason of non-performance 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 by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS AND THE
------------ --------------------------------------------------------------
COMPANY. Neither the Depositary nor any Depositary's Agent nor the Company
-------
assumes any obligation, nor shall be subject to any liability under this Deposit
Agreement to holders of Receipts, except that nothing herein shall relieve the
Depositary, the Depositary's Agent or the Company for liability to such holders
from acts or omissions arising out of conduct finally adjudicated to constitute
gross negligence or bad faith on the part of such person or persons in the
performance of such duties as are specifically set forth in this Deposit
Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Deposited Stock, the Depositary Shares or the
Receipts, which in its reasonable opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
is furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company shall be
liable (i) if it is prevented or delayed by law or any circumstance beyond its
control in performing its obligations under this Deposit Agreement, or (ii) for
any action or any failure to act by it in reliance upon the advice of legal
counsel (which may be in-house counsel) or accountants. The Depositary, any
Depositary's Agent and the Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document delivered
by it to be genuine and to have been signed or presented by the proper party or
parties.
The Depositary and any Depositary's Agent may own and deal in any class of
securities of the Company and its affiliates and in Receipts. The Depositary
may also act as Transfer Agent or Registrar of any of the securities of the
Company and its affiliates, including, without limitation, the Common Stock as
to which the Depositary, at the date hereof, is Transfer Agent and Registrar.
Neither the Depositary nor any of the Depositary's Agents is a trustee for
the benefit of holders of the Receipts. It is intended that neither the
Depositary nor any Depositary's Agent shall be deemed to be an "issuer" of the
securities under the federal securities laws or applicable state securities
laws, it being expressly understood and agreed that the Depositary and the
Depositary's Agents are acting only in a ministerial capacity as Depositary for
the Deposited Stock.
Neither the Depositary (or its officers, directors, employees or agents) nor
any Depositary's Agent makes any representation or has any responsibility as to
the validity of the Registration Statement, the Deposited Stock, the Depositary
Shares or any instruments referred to therein or herein, or as to the
correctness of any statement made therein or herein; provided, however, that the
Depositary is
13
responsible for (i) its representations in this Deposit Agreement and (ii) the
validity of any action taken or required to be taken by the Depositary in
connection with this Deposit Agreement.
Notwithstanding any other provisions herein or set forth in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Deposited Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares as to the value of the
Depositary Shares, the Deposited Stock or Receipts or as to any right, title or
interest of the record holders of the Receipts to the Depositary Shares or
Deposited Stock represented thereby. The Depositary shall not be accountable
for the use or application by the Company of the Deposited Stock, the Depositary
Shares or Receipts or the proceeds of any thereof.
The Company agrees that it will register the Deposited Stock and the
Depositary Shares in accordance with applicable securities laws.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
------------ ---------------------------------------------------------
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
--------------------
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary,
Registrar and Transfer Agent and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary, Registrar and Transfer Agent and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. Every successor Depositary, Registrar and Transfer Agent shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
Depositary, Registrar and Transfer Agent 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 Deposited Stock and any moneys or property held hereunder to such
successor, and shall deliver to such successor a list of the record holders of
all outstanding Receipts. Any such successor Depositary shall promptly mail
notice of its appointment to the record holders of the 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. Such successor Depositary may
authenticate the Receipts in the name of its predecessor Depositary or in the
name of the successor.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that it
------------ -----------------------------
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts in each case at the address
recorded in the Depositary's books, copies of all notices and reports
(including, without limitation, financial statements) required by law, by the
rules of the NASDAQ/NMS
14
or any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are included for quotation or listed or by the Articles of
Incorporation or Certificate of Designation to be furnished by the Company to
holders of Deposited Stock. Such transmissions will be at the Company's expense
and the Company will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition, the Depositary
will transmit to the holders of Receipts (at the Company's expense) such other
documents as shall be directed by the Company.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company agrees to
------------ ------------------------------
indemnify the Depositary and any Depositary's Agent, against and hold each of
them harmless from, any liability which may arise out of acts performed or
omitted in connection with the provisions of this Deposit Agreement, as the same
may be amended, modified or supplemented from time to time, and the Receipts (a)
by the Depositary, or any of the Depositary's Agents, except for any liability
arising out of gross negligence or bad faith on the part of any such person or
persons, or (b) by the Company or any of the Company's Agents (other than the
Depositary or the Depositary's Agents).
SECTION 5.07. CHARGES AND EXPENSES. No charges and expenses of the
------------ --------------------
Depositary or any Depositary's Agent hereunder shall be payable by any person,
except for any taxes and other governmental charges and except as provided in
this Section 5.07. The Company will pay charges of the Depositary in connection
with the initial deposit of the Deposited Stock and any redemption of the Stock
and will pay all transfer and other taxes and governmental charges arising
solely from the existence of this Deposit Agreement. If, at the election of a
holder of Deposited Stock or Receipts, any delivery or communication from the
Depositary to such holder is by telegram or telex or if the Depositary incurs
charges or expenses for which it is not otherwise liable hereunder at the
election of such holder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder (including fees and expenses of counsel) incident to the
performance of its obligations hereunder will be promptly paid by the Company as
previously agreed upon by the Company and the Depositary. The Depositary shall
present its statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any provisions of
------------ ---------
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. However, any amendment which shall materially and
adversely alter the rights of holders of Receipts, shall not become effective
unless such amendment has been approved by the record holders of at least a
majority of the number of the Depositary Shares then outstanding. In no event
shall any amendment impair the right, subject to the provisions of Sections 2.07
and 2.08 and Article III, of any owner of any Depositary Shares to surrender the
Receipt evidencing such Depositary Shares with instructions to the Depositary to
deliver to the holder the Deposited Stock and all money and other property, if
any, represented thereby, except in order to comply with mandatory provisions of
applicable law.
SECTION 6.02. TERMINATION. This Deposit Agreement may only be terminated by
------------ -----------
the Company or the Depositary by written notice to the other party if (i) all
outstanding Depositary Shares issued pursuant hereto have been redeemed or
converted into Common Stock or (ii) there has been a final
15
distribution in respect of the Deposited Shares in connection with a
liquidation, dissolution or winding up of the Company and such distribution has
been distributed to the holders of the Depositary Shares entitled thereto. Upon
the termination of this Deposit Agreement, the Company shall be discharged from
all obligations under this Deposit Agreement except for its obligations to the
Depositary and any Depositary's Agent under Section 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed in any
------------ ------------
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which Counterparts when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. 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 Securities Division and the respective
offices of the Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.02. 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 7.03. INVALIDITY OF PROVISIONS. In case any one or more of the
------------ ------------------------
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the Company
------------ -------
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to the Company at 000 Xxxxx Xxxxxxxx, X.X. Xxx 0,
Xxxxxxx, Xxxxxx 00000, attention Xxxx X. Xxxxxxx, or at any other place of which
the Company has 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 its Securities Division.
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
may, however, act upon any facsimile transmission, telegram or telex message
received by it from the
16
other or from any holder of a Receipts notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may with the approval of
-------------------
the Company (such approval not to be unreasonably withheld or denied) from time
to time appoint Depositary's Agents (which may include a Registrar appointed
pursuant to Section 5.01) to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts from
-------------------------------
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW. The 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 Kansas.
SECTION 7.08. HEADINGS. The headings of articles and sections in this
--------
Deposit Agreement and in the form of the Receipt set forth in Exhibit B hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
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.
FOURTH FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
Attest:
/s/
------------------------
Secretary
BANK IV KANSAS, NATIONAL ASSOCIATION,
as Depositary
By: /s/ J. Xxxxxx Xxxxxxx
------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Vice President
Attest:
/s/
------------------------
Secretary
17
EXHIBIT A
FORM OF
COMPANY'S CERTIFICATE OF DESIGNATION
------------------------------------
A-1
STATE OF KANSAS
OFFICE OF
SECRETARY OF STATE
XXXX XXXXXX
To all to whom these presents shall come, Greetings:
I, Xxxx Xxxxxx, Secretary of State of the State of Kansas, do hereby certify
that the attached is a true and correct copy of an original on file and of
record in this office.
In testimony whereof:
I hereto set my hand and cause to be affixed my official seal.
Done at the City of Topeka on the date below:
XXXX XXXXXX
SECRETARY OF STATE
BY
ASSISTANT SECRETARY OF STATE
A-2
CERTIFICATE OF DESIGNATION
RIGHTS AND PREFERENCES
OF THE
CLASS A CUMULATIVE CONVERTIBLE PREFERRED STOCK
$100 PAR VALUE
OF
FOURTH FINANCIAL CORPORATION
_______________________________
Pursuant to Section 17-6401 of the
General Corporation Code
of the State of Kansas
_______________________________
FOURTH FINANCIAL CORPORATION, a corporation organized and existing under the
General Corporation Code of the State of Kansas (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The Restated Articles of Incorporation of the corporation, as
amended, authorize the issuance of 250,000 shares of preferred stock, $100 par
value, of the Corporation ("Preferred Stock") in one or more series, and
authorizes the Board of Directors to fix by resolution or resolutions the
designation of each series of Preferred Stock and the powers, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof.
SECOND: The Restated Articles of Incorporation of the Corporation, as
amended, authorize the issuance of 50,000,000 shares of Common Stock of which
3,448,276 shares have been reserved for issuance upon conversion of the Class A
Preferred Stock, as hereinafter defined, in accordance with Section 5 of this
Certificate of Designation.
THIRD: The Board of Directors of the Corporation, pursuant to resolutions
adopted at a regular meeting of the Board of Directors duly held on January 23,
1992, authorized the issuance, the public offering and the sale of shares of a
series of Preferred Stock of the Corporation, to be designated as the Class A
Cumulative Convertible Preferred Stock (the "Class A Preferred Stock"), and
authorized the Executive Committee of the Board of Directors to approve the
price at which, the title, dividend rate,
A-3
form, and number of shares of which the Class A Preferred Stock shall be offered
to the public; the underwriting discount, agency fees or similar selling costs;
the period or periods within which, and the price at which, the Class A
Preferred Stock may be redeemed by the Corporation, if any; to approve or ratify
the Registration Statement for the Class A Preferred Stock and all amendments
and supplements thereto; to fix the terms at which the Class A Preferred Stock
can be converted into the Common Stock of the Corporation and to reserve the
number of shares of Common Stock issuable upon the conversion of any such series
of Class A Preferred Stock; to establish such other terms and make such other
changes in the terms of the proposed issue of Class A Preferred Stock; and to
approve all the forms of instruments relating thereto, and any changes therein,
not inconsistent with the foregoing, as such Committee deemed to be desirable
and in the best interests of the Corporation.
FOURTH: Pursuant to the authority previously granted to it by the Board of
Directors, the Executive Committee of the Board of Directors of the Corporation,
at a meeting duly held on February 13, 1992, did duly adopt the following
resolutions providing for the designation, powers, preferences, and rights, and
the qualifications, limitations, and/or restrictions thereof, of Class A
Cumulative Convertible Preferred Stock, $100 par value, of the Corporation:
BE IT RESOLVED, that the Executive Committee of the Board of Directors of
Fourth Financial Corporation (the "Corporation"), pursuant to authority vested
in it by the Board of Directors and in accordance with the provisions of the
Restated Articles of Incorporation, as amended, of the Corporation, hereby
approves the issuance of a series of the Class A Cumulative Convertible
Preferred Stock, $100 par value, of the Corporation and hereby fixes the powers,
preferences, rights, and qualifications, limitations and restrictions thereof in
addition to those set forth in said Restated Articles of Incorporation, as
amended, as follows:
1. DESIGNATION. The designation of the series of Preferred Stock created
-----------
by this resolution shall be Class A Cumulative Convertible Preferred Stock, $100
par value, of the Corporation (hereinafter referred to as "Class A Preferred
Stock"), and the number of shares constituting such series shall be 250,000,
which number may be increased (but not above the total number of shares of
Preferred Stock of the Corporation then authorized by the Restated Articles of
Incorporation, as amended from time to time) or decreased (but not below the
number of shares then outstanding) from time to time by the Board of Directors.
The Class A Preferred Stock shall rank prior to the Common Stock of the
Corporation with respect to the payment of dividends and the distribution of
assets.
2. DIVIDEND RIGHTS.
---------------
(a) The holders of shares of Class A Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors, out of funds legally
available therefor, cash dividends, accruing from the date of initial issuance,
at the annual rate of 7.00% per annum, and no more, payable, when and as
declared by the Board of Directors, quarterly on March 1, June 1, September 1,
and December 1 of each year (each quarterly period ending on any such date being
hereinafter referred to as a "dividend period"), commencing June 1, 1992, at
such annual rate. Each dividend will be payable to holders of record as they
appear on the stock books of the Corporation on such record dates as shall be
fixed by the Board of Directors of the Corporation. The date of initial
issuance of shares of Class A Preferred Stock is hereinafter referred to as the
"Issue Date". Dividends payable on the Class A Preferred Stock (i) for any
period other than a full dividend period shall be computed on the basis of a
360-day year consisting of twelve 30-day months and (ii) for each full dividend
period shall be computed by dividing the annual dividend rate by four.
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(b) Dividends on shares of Class A Preferred Stock shall be cumulative
from the Issue Date whether or not there shall be funds legally available for
the payment thereof. If there shall be outstanding shares of any other series
of Preferred Stock ranking junior to or on a parity with the Class A Preferred
Stock as to dividends, no dividends shall be declared or paid or set apart for
payment on any such other series for any period unless full cumulative dividends
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment on the Class A
Preferred Stock for all dividend periods terminating on or prior to the date of
payment of such dividends. If dividends on the Class A Preferred Stock and on
any other series of Preferred Stock ranking on a parity as to dividends with the
Class A Preferred Stock are in arrears, in making any dividend payment on
account of such arrears, the Corporation shall make payments ratably upon all
outstanding shares of the Class A Preferred Stock and shares of such other
series of Preferred Stock in proportion to the respective amounts of dividends
in arrears on the Class A Preferred Stock and on such other series of Preferred
Stock to the date of such dividend payment. Holders of shares of the Class A
Preferred Stock shall not be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends on such shares. No
interest or sum of money in lieu of interest shall be payable in respect of any
dividend payment or payments which may be in arrears.
(c) Unless full cumulative dividends on all outstanding shares of the
Class A Preferred Stock shall have been paid or declared and set aside for
payment for all past dividend periods, no dividend (other than a dividend in
Common Stock or in any other stock ranking junior to the Class A Preferred Stock
as to dividends and the distribution of assets upon liquidation, dissolution or
winding up) shall be declared upon the Common Stock or upon any other stock
ranking junior to the Class A Preferred Stock as to dividends and the
distribution of assets upon liquidation, dissolution, or winding up, nor shall
any Common Stock or any other stock of the Corporation ranking junior to or on a
parity with the Class A Preferred Stock as to dividends or upon the distribution
of assets upon liquidation, dissolution or winding up be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such stock)
by the Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to the Class A Preferred Stock as to dividends and
the distribution of assets upon liquidation, dissolution or winding up).
3. LIQUIDATION PREFERENCES.
-----------------------
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
Class A Preferred Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to stockholders an amount equal to
$400.00 per share plus an amount equal to any accrued and unpaid dividends
thereon to and including the date of such distribution, and no more, before any
distribution shall be made to the holders of Common Stock or any other class of
stock of the Corporation ranking junior to the Class A Preferred Stock as to the
distribution of assets. After payment of such liquidating distributions, the
holders of shares of Class A Preferred Stock will not be entitled to any further
participation in any distribution of assets by the Corporation.
(b) In the event the assets of the Corporation available for
distribution to stockholders upon any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full the amounts payable with respect to the Class A
Preferred Stock and any other shares of Preferred Stock ranking on a parity with
the Class A Preferred Stock as to the distribution of assets, the holders of
Class A Preferred Stock and the holders of such other
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Preferred Stock shall share ratably in any distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled.
(c) The merger or consolidation of the Corporation into or with any
other corporation, the merger or consolidation of any other corporation into or
with the Corporation or the sale of the assets of the Corporation substantially
as an entirety shall not be deemed a liquidation, dissolution or winding up of
the affairs of the Corporation within the meaning of this Section 3.
4. REDEMPTION.
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(a) Subject to obtaining the prior approval of the Board of Governors of
the Federal Reserve System, the Corporation, at its option, may redeem any or
all shares of Class A Preferred Stock, at any time or from time to time, on or
after March 1, 1997 at a redemption price of $400.00 per share, plus an amount
equal to accrued and unpaid dividends thereon to and including the date of
redemption (the "Redemption Price").
(b) If less than all the outstanding shares of Class A Preferred Stock
are to be redeemed, the shares to be redeemed shall be selected pro rata as
nearly as practicable or by lot, or by such other method as the Board of
Directors may determine to be fair and appropriate.
(c) Notice of any redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the date fixed
for redemption to the holders of record of the shares of Class A Preferred Stock
to be redeemed, at their respective addresses appearing on the books of the
Corporation. Notice so mailed shall be conclusively presumed to have been duly
given whether or not actually received. Such notice shall state: (i) the date
fixed for redemption; (ii) the Redemption Price; (iii) that the holder has the
right to convert such shares into Common Stock until the close of business on
the tenth day preceding the redemption date; (iv) the then-effective conversion
price and the place where certificates for such shares may be surrendered for
conversion; (v) the number of shares of Class A Preferred Stock to be redeemed
and if less than all the shares held by such holder are to be redeemed, the
number of such shares to be so redeemed from such holder; (vi) the place where
certificates for such shares are to be surrendered for payment of the Redemption
Price; and (vii) that after such date fixed for redemption the shares to be
redeemed shall not accrue dividends. If such notice is mailed as aforesaid, and
if on or before the date fixed for redemption funds sufficient to redeem the
shares called for redemption are set aside by the Corporation in trust for the
account of the holders of the shares to be redeemed, notwithstanding the fact
that any certificate for shares called for redemption shall not have been
surrendered for cancellation, on and after the redemption date the shares
represented thereby so called for redemption shall be deemed to be no longer
outstanding, dividends thereon shall cease to accrue and all rights of the
holders of such shares as stockholders of the Corporation shall cease (except
the right to receive the Redemption Price, without interest, upon surrender of
the certificate representing such shares). Upon surrender in accordance with
the aforesaid notice of the certificate for any shares so redeemed (duly
endorsed or accompanied by appropriate instruments of transfer, if so required
by the Corporation in such notice), the holders of record of such shares shall
be entitled to receive the Redemption Price, without interest. Notwithstanding
the foregoing, however, as and to the extent that the Corporation is required or
permitted under the abandoned property laws of any jurisdiction to escheat any
redemption funds held in trust for the benefit of any holder, the Corporation
shall be absolved of any further obligation or liability to such holder to the
full extent provided by any such law. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder thereof.
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(d) At the option of the Corporation, if notice of redemption is mailed
as aforesaid, and if prior to the date fixed for redemption funds sufficient to
pay in full the Redemption Price are deposited in trust, for the account of the
holders of the shares to be redeemed, with a bank or trust company named in such
notice doing business in the State of Kansas or the Borough of Manhattan, The
City of New York, State of New York, and having capital and surplus of at least
$50 million (which bank or trust company also may be the transfer agent and/or
paying agent for the Class A Preferred Stock) notwithstanding the fact that any
certificate(s) for shares called for redemption shall not have been surrendered
for cancellation, on and after such date of deposit the shares represented
thereby so called for redemption shall be deemed to be no longer outstanding,
and all rights of the holders of such shares as shareholders of the Corporation
shall cease, except the right of the holders thereof to convert such shares in
accordance with the provisions of Section 5 at any time prior to the close of
business on the tenth day preceding the redemption date and the right of the
holders thereof to receive out of the funds so deposited in trust the Redemption
Price, without interest, upon surrender of the certificate(s) representing such
shares. Any funds so deposited with such bank or trust company in respect of
shares of Class A Preferred Stock converted before the close of business on the
tenth day preceding the redemption date shall be returned to the Corporation
upon such conversion. Unless otherwise required by law, any funds so deposited
with such bank or trust company which shall remain unclaimed by the holders of
shares called for redemption at the end of two years after the redemption date
shall be repaid to the Corporation, on demand, and thereafter the holder of any
such shares shall look only to the Corporation for the payment, without
interest, of the Redemption Price. Notwithstanding the foregoing, however, as
and to the extent that the Corporation is required or permitted under the
abandoned property laws of any jurisdiction to escheat any redemption funds held
in trust for the benefit of any holder, the Corporation shall be absolved of any
further obligation or liability to such holder to the full extent provided by
any such laws.
(e) Any provision of this Section 4 to the contrary notwithstanding, in
the event that any quarterly dividend payable on the Class A Preferred Stock
shall be in arrears and until all such dividends in arrears shall have been paid
or declared and set apart for payment, the Corporation shall not redeem any
shares of Class A Preferred Stock unless all outstanding shares of Class A
Preferred Stock are simultaneously redeemed and shall not purchase or otherwise
acquire any shares of Class A Preferred Stock except in accordance with a
purchase or exchange offer made on the same terms to all holders of record of
Class A Preferred Stock for the purchase of all outstanding shares thereof.
5. CONVERSION RIGHTS. The holders of shares of Class A Preferred Stock
-----------------
shall have the right, at their option, to convert such shares into shares of
Common Stock on the following terms and conditions:
(a) Shares of Class A Preferred Stock shall be convertible at any time
into fully paid and nonassessable shares of Common Stock at a conversion price
of $29.00 per share of Common Stock (the "Conversion Price"). For purposes of
this Section 5, references to shares of Class A Preferred Stock shall apply
equally to fractional shares thereof, but only to the extent that such
fractional shares are integral multiples of 1/16 of one share. The Conversion
Price shall be subject to adjustment from time to time as hereinafter provided.
For purposes of such conversion, each share of Class A Preferred Stock will be
valued at $400. No payment or adjustment shall be made on account of any
accrued and unpaid dividends on shares of Class A Preferred Stock surrendered
for conversion prior to the record date for the determination of stockholders
entitled to such dividends or on account of any dividends on the shares of
Common Stock issued upon such conversion subsequent to the record date for the
determination of stockholders entitled to such dividends. If any shares of
Class A Preferred Stock shall be called for
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redemption, the right to convert the shares designated for redemption shall
terminate at the close of business on the tenth day preceding the date fixed for
redemption unless default is made in the payment of the Redemption Price. In
the event of default in the payment of the Redemption Price, the right to
convert the shares designated for redemption shall terminate at the close of
business on the business day immediately preceding the date that such default is
cured.
(b) In order to convert shares of Class A Preferred Stock into Common
Stock, the holder thereof shall surrender the certificates therefor, duly
endorsed if the Corporation shall so require, or accompanied by appropriate
instruments of transfer satisfactory to the Corporation, at the office of the
transfer agent for the Class A Preferred Stock, or at such other office as may
be designated by the Corporation, together with written notice that such holder
irrevocably elects to convert such shares or any fraction of a share of Class A
Preferred Stock having a denominator of 16, each such fractional interest,
measured in 1/16 of a share, being valued for purposes of conversion at $25;
references in this Section 5 to the conversion of any share of Class A Preferred
Stock shall also apply, mutatis mutandis, to such fractional interests. Such
notice shall also state the name and address in which such holder wishes the
certificate for the shares of Common Stock issuable upon conversion to be
issued. As soon as practicable after receipt of the certificates representing
the shares of Class A Preferred Stock to be converted and the notice of election
to convert the same, the Corporation shall issue and deliver at said office a
certificate for the number of whole shares of Common Stock issuable upon
conversion of the shares of Class A Preferred Stock surrendered for conversion,
together with a cash payment in lieu of any fraction of a share, as hereinafter
provided, to the person entitled to receive the same. If more than one stock
certificate for Class A Preferred Stock shall be surrendered for conversion at
one time by the same holder, the number of full shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of shares represented by all the certificates so surrendered. Shares of Class A
Preferred Stock shall be deemed to have been converted immediately prior to the
close of business on the date such shares are surrendered for conversion and
notice of election to convert the same is received by the Corporation in
accordance with the foregoing provision, and the person entitled to receive the
Common Stock issuable upon such conversion shall be deemed for all purposes as
the record holder of such Common Stock as of such date.
(c) In the case of any share of Class A Preferred Stock which is
converted after any record date with respect to the payment of a dividend on the
Class A Preferred Stock and on or prior to the date on which such dividend is
payable by the Corporation (the "Dividend Due Date"), the dividend due on such
Dividend Due Date shall be payable on such Dividend Due Date to the holder of
record of such shares as of such preceding record date notwithstanding such
conversion. Shares of Class A Preferred Stock surrendered for conversion during
the period from the close of business on any record date with respect to the
payment of a dividend on the Class A Preferred Stock next preceding any Dividend
Due Date to the opening of business on such Dividend Due Date shall (except in
the case of shares of Class A Preferred Stock which have been called for
redemption on a redemption date within such period) be accompanied by payment in
New York Clearing House funds or other funds acceptable to the Corporation of an
amount equal to the dividend payable on such Dividend Due Date on the shares of
Class A Preferred Stock being surrendered for conversion. The dividend with
respect to a share of Class A Preferred Stock called for redemption on a
redemption date during the period from the close of business on any record date
with respect to the payment of a dividend on the Class A Preferred Stock next
preceding any Dividend Due Date to the opening of business on such Dividend Due
Date shall be payable on such Dividend Due Date to the holder of record of such
share on such dividend record date, notwithstanding the conversion of such share
of Class A Preferred Stock after such record date and prior to such Dividend Due
Date, and the holder converting such share of Class A Preferred Stock called for
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redemption need not include a payment of such dividend amount upon surrender of
such share of Class A Preferred Stock for conversion. Except as provided in
this subsection, no payment or adjustment shall be made upon any conversion on
account of any dividends accrued on shares of Class A Preferred Stock
surrendered for conversion or on account of any dividends on the shares of
Common Stock issued upon conversion.
(d) No fractional shares of Common Stock shall be issued upon conversion
of any shares of Class A Preferred Stock. If more than one share of Class A
Preferred Stock is surrendered at one time by the same holder, the number of
full shares issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares so surrendered. If the conversion of any shares
of Class A Preferred Stock results in a fractional share of Common Stock, the
Corporation shall pay cash in lieu thereof in an amount equal to such fraction
multiplied by the closing price, determined as provided in subsection (vi) of
Section 5(e) below, on the date on which the shares of Class A Preferred Stock
were duly surrendered for conversion, or if such date is not a trading date, on
the next succeeding trading date.
(e) The conversion Price shall be adjusted from time to time as follows:
(i) In case the Corporation shall pay or make a dividend or other
distribution on shares of Common Stock in Common Stock, the Conversion Price
in effect at the opening of business on the date following the date fixed
for the determination of stockholders entitled to receive such dividend or
other distribution shall be reduced by multiplying such Conversion Price by
a fraction of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For purposes of this subsection, the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Corporation but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock.
The Corporation will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Corporation.
(ii) In case the Corporation shall issue additional rights or
warrants to all holders of its Common Stock entitling them to subscribe for
or purchase shares of Common Stock at a price per share less than the then
current market price per share (determined as provided in subsection (vi)
below) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants (other than
pursuant to a dividend reinvestment plan), the Conversion Price in effect at
the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such Conversion Price by a
fraction of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the aggregate
of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such current market
price (determined as provided in subsection (vi) below) and the denominator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares
of Common Stock so offered for subscription or purchase, such reduction to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
subsection (ii), the number of shares of Common Stock at anytime outstanding
shall not include shares held in the
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treasury of the Corporation but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock.
The Corporation will not issue any rights or warrants in respect of shares
of Common Stock held in the treasury of the Corporation during the period so
held.
(iii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately reduced,
and, conversely, in case outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
(iv) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness
or assets (including securities, but excluding (1) any rights or warrants
referred to in subsection (ii) above, (2) any dividend or distribution paid
in cash out of the retained earnings of the Corporation and (3) any dividend
or distribution referred to in subsection (i) above), the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in subsection (vi)
below) of the Common Stock on the date fixed for such determination less the
then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and shall be described in a statement
filed with the transfer agent for the Class A Preferred Stock) of the
portion of the evidences of indebtedness or assets so distributed applicable
to one share of Common Stock and the denominator shall be such current
market price per share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business on the day following
the date fixed for the determination of stockholders entitled to receive
such distribution.
(v) For the purposes of this Section 5, the reclassification of
Common Stock into securities including securities other than Common Stock
(other than any reclassification upon a consolidation or merger to which
Section 5(g) below applies) shall be deemed to involve (A) a distribution of
such securities other than Common Stock to all holders of Common Stock (and
the effective date of such reclassification shall be deemed to be "the date
fixed for the determination of stockholders entitled to receive such
distribution" and the "date fixed for such determination" within the meaning
of subsection (iv) above), and (B) a subdivision or combination, as the case
may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
became effective" or "the day upon which such combination becomes effective"
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of subsection (iii) above).
(vi) For the purpose of any computation under subsections (ii) and
(iv) above, the current market price per share of Common Stock on any day
shall be deemed to be the average
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of the daily closing prices for the 30 consecutive trading days commencing
45 trading days before the day in question. The closing price for each day
shall be the reported last sale price or, in case no such reported sale
takes place on such day, the average of the reported closing bid and asking
prices, in either case on the National Association of Securities Dealers
Automated Quotations National Market System or, if the Common Stock is no
longer quoted to trading on such system, on the principal national
securities exchange on which the Common Stock is then listed or admitted to
trading or, if the Common Stock is not quoted on such National Market System
or listed or admitted to trading on any national securities exchange, the
average of the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected from time
to time by the Board of Directors for that purpose.
(vii) Notwithstanding the foregoing, no adjustment in the
Conversion Price for the Class A Preferred Shares shall be required unless
such adjustment would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this
subsection (vii) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
(f) Whenever the Conversion Price shall be adjusted as herein provided
(i) the Corporation shall forthwith make available at the office of the transfer
agent for the Class A Preferred Stock a statement describing in reasonable
detail the adjustment, the facts requiring such adjustment and the method of
calculation used; and (ii) the Corporation shall cause to be mailed by first
class mail, postage prepaid, as soon as practicable to each holder of record of
shares of Class A Preferred Stock a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion Price.
(g) In the event of any consolidation of the Corporation with or merger
of the Corporation into any other corporation (other than a merger in which the
Corporation is the surviving corporation) or a sale, lease or conveyance of the
assets of the Corporation as an entirety or substantially as an entirety, or any
statutory exchange of securities with another corporation, the holder of each
share of Class A Preferred Stock shall have the right, after such consolidation,
merger, sale or exchange to convert such share into the number and kind of
shares of stock or other securities and the amount and kind of property which
such holder would have been entitled to receive upon such consolidation, merger,
sale or exchange of the number of shares of Common Stock that would have been
issued to such holder had such shares of Class A Preferred Stock been converted
immediately prior to such consolidation, merger or sale. The provisions of this
Section 5(g) shall similarly apply to successive consolidations, mergers, sales
or exchanges.
(h) The Corporation shall pay any taxes that may be payable in respect
of the issuance of shares of Common Stock upon conversion of shares of Class A
Preferred Stock, but the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer involved in the issuance of
shares of Common Stock in the name other than that in which the shares of Class
A Preferred Stock so converted are registered, and the Corporation shall not be
required to issue or deliver any such shares unless and until the person
requesting such issuance shall have paid to the Corporation the amount of any
such taxes, or shall have established to the satisfaction of the Corporation
that such taxes have been paid.
(i) The Corporation may (but shall not be required to) make such
reductions in the Conversion Price, in addition to those required by subsections
(i) through (iv) of Section 5(e) above, as
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it considers to be advisable in order that any event treated for federal income
tax purposes as a dividend of stock or stock rights shall not be taxable to the
recipients.
(j) The Corporation shall at all times reserve and keep available out of
its authorized but unissued Common Stock the full number of shares of Common
Stock issuable upon the conversion of all shares of Class A Preferred Stock then
outstanding.
(k) In the event that:
(i) the Corporation shall declare a dividend or any other
distribution on its Common Stock, payable otherwise than in cash out of
retained earnings; or
(ii) the Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(iii) any capital reorganization of the Corporation,
reclassification of the capital stock of the Corporation, consolidation or
merger of the Corporation with or into another corporation (other than a
merger in which the Corporation is the surviving corporation), or sale,
lease or conveyance of the assets of the Corporation as an entirety or
substantially as an entirety to another corporation occurs; or
(iv) the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation occurs, the Corporation shall cause to be
mailed to the holders of record of Class A Preferred Stock at least 15 days
prior to the applicable date hereinafter specified a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution of rights or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined or (y) the date on which such
reorganization, reclassification, consolidation, merger, sale, lease,
conveyance, dissolution, liquidation or winding up is expected to take
place, and the date, if any is to be fixed, as of which holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, lease, conveyance,
dissolution, liquidation or winding up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reorganization, reclassification, consolidation, merger, sale,
lease, conveyance, dissolution, liquidation or winding up.
6. VOTING RIGHTS. Other than as required by applicable law, the Class A
-------------
Preferred Stock shall not have any voting powers either general or special,
except that:
(a) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of the
holders of at least 66-2/3% of all of the shares of the Class A Preferred Stock,
and any one or more other series of preferred stock of the Corporation similarly
affected, at the time outstanding, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose at which the holders of
shares of the Class A Preferred Stock and any such other series of preferred
stock shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or repeal of any
of the provisions of the Restated Articles of Incorporation, as amended, or of
any amendment or supplement thereto (including
A-12
any certificate of designation or any similar document relating to any series of
preferred stock) of the Corporation, which would adversely affect the
preferences, rights, powers or privileges, qualifications, limitations and
restrictions of the Class A Preferred Stock.
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of the
holders of at least 66-2/3% of all of the shares of the Class A Preferred Stock
and any other series of preferred stock of the Corporation ranking on a parity
with shares of the Class A Preferred Stock, either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up, at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of the Class A
Preferred Stock and any such other series of preferred stock of the Corporation
shall vote together as a single class without regard to series, shall be
necessary to create, authorize or issue, or reclassify any authorized stock of
the Corporation into, or create, authorize or issue any obligation or security
convertible into or evidencing a right to purchase, any shares of any class of
stock of the Corporation ranking prior to the Class A Preferred Stock or ranking
prior to any other series of preferred stock of the Corporation which ranks on a
parity with the Class A Preferred Stock as to dividends or upon the distribution
of assets upon liquidation, dissolution or winding up. Subject to the
foregoing, the Corporation's Restated Articles of Incorporation, as amended, may
be amended to increase the number of authorized shares of preferred stock
without the vote of the holders of preferred stock, including the Class A
Preferred Stock.
(c) Whenever, at any time or times, dividends payable on the shares of
Class A Preferred Stock shall be in arrears in an amount equal to at least six
full quarterly dividends on shares of the Class A Preferred Stock at the time
outstanding, the holders of the outstanding shares of Class A Preferred Stock
shall have the exclusive right, voting separately as a class together with
holders of shares of any one or more other series of Preferred Stock ranking on
a parity with the Class A Preferred Stock either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up and upon
which like voting rights have been conferred and are exercisable, to elect two
directors of the Corporation for one-year terms at the Corporation's next annual
meeting of stockholders and at each subsequent annual meeting of stockholders.
At elections for such directors, each holder of Class A Preferred Stock shall be
entitled to one vote for each share held (the holders of shares of any other
series of preferred stock ranking on such a parity being entitled to such number
of votes, if any, for each share of stock held as may be granted to them). Upon
the vesting of such right of the holders of Class A Preferred Stock, the maximum
authorized number of members of the Board of Directors shall automatically be
increased by two and the two vacancies so created shall be filled by vote of the
holders of the outstanding shares of Class A Preferred Stock (either alone or
together with the holders of shares of any one or more other series of preferred
stock ranking on such a parity) as hereinafter set forth. The right of the
holders of Class A Preferred Stock, voting separately as a class to elect
(either alone or together with the holders of shares of any one or more other
series of preferred stock ranking on such a parity) members of the Board of
Directors of the Corporation as aforesaid shall continue until such time as all
dividends accumulated on the Class A Preferred Stock shall have been paid in
full or declared and set apart for payment, at which time such right shall
immediately terminate, except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of the character
above mentioned.
(d) Upon termination of such special voting rights attributable to all
holders of the Class A Preferred Stock and any other series or preferred stock
ranking on a parity with the Class A Preferred Stock as to dividends or the
distribution of assets upon liquidation, dissolution or winding up
A-13
and upon which like voting rights have been conferred and are exercisable, the
term of office of each director elected by the holders of shares of Class A
Preferred Stock and such parity preferred stock (a "Preferred Stock Director")
pursuant to such special voting rights shall immediately terminate and the
number of directors constituting the entire Board of Directors shall be reduced
by the number of Preferred Stock Directors. Any Preferred Stock Director may be
removed by, and shall not be removed otherwise than by, the vote of the holders
of record of a majority of the outstanding shares of Class A Preferred Stock and
all other series of preferred stock ranking on a parity with the Class A
Preferred Stock with respect to dividends who were entitled to participate in
such Preferred Stock Director's election, voting as a separate class, at a
meeting called for such purposes. If the office of any Preferred Stock Director
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office, or otherwise, the remaining Preferred Stock Director may
choose a successor who shall hold office for the unexpired term in respect of
which such vacancy occurred.
7. REACQUIRED SHARES. Shares of Class A Preferred Stock converted,
-----------------
redeemed, or otherwise purchased or acquired by the Corporation shall be
restored to the status of authorized but unissued shares of Class A Preferred
Stock without designation as to series.
8. RANKING. Any class or classes of stock of the Corporation shall be
-------
deemed to rank:
(i) prior to the Class A Preferred Stock, as to dividends or as to
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of the Class A
Preferred Stock;
(ii) on a parity with the Class A Preferred Stock, as to dividends
or as to distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of the Class A
Preferred Stock, if the holders of such class of stock and the Class A
Preferred Stock shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation prices, without preference or priority
one over the other; and
(iii) junior to the Class A Preferred Stock, as to dividends or as
to the distribution of assets upon liquidation, dissolution or winding up,
if such stock shall be Common Stock or if the holders of Class A Preferred
Stock shall be entitled to receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of shares of such stock.
9. NO SINKING FUND. Shares of Class A Preferred Stock are not subject to
---------------
the operation of a sinking fund or other obligation of the Corporation to redeem
or retire the Class A Preferred Stock.
FURTHER RESOLVED, that the officers of the Corporation, and each of them, are
hereby authorized, for and on behalf of and in the name of the Corporation, to
file a copy of the foregoing resolution with the Secretary of State of the State
of Kansas in accordance with the provisions of Sections 17-6003 and 17-6401 of
the General Corporation Code of the State of Kansas.
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IN WITNESS WHEREOF, FOURTH FINANCIAL CORPORATION, has caused this Certificate
of Designation to be signed by Xxxxxxx X. Xxxxxxx, its Chairman of the Board,
and attested by Xxxx X. Xxxxxxx, its Secretary, this 17th day of February, 1992.
FOURTH FINANCIAL CORPORATION
By
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
Attest:
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Secretary
A-15
ACKNOWLEDGMENT
--------------
STATE OF KANSAS )
) ss.
SEDGWICK COUNTY )
BE IT REMEMBERED, that on this 17th day of February, 1992, before me, a
Notary Public within and for the County and State aforesaid, came Xxxxxxx X.
Xxxxxxx, Chairman of the Board and Xxxx X. Xxxxxxx, Secretary, of Fourth
Financial Corporation, a Kansas corporation, who are personally known to me and
known to me to be the same persons who executed the foregoing Certificate of
Designation as Chairman of the Board and Secretary, and said persons duly
acknowledged to me their execution of the same as and for their free and
voluntary act and deed, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal
at Wichita, Kansas, the day, month, and year last above written.
--------------------------------
Notary Public
My Appointment Expires:
------------------------
A-16
EXHIBIT B
FORM OF DEPOSITARY RECEIPTS
---------------------------
B-1
NOT MORE THAN
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
DR EACH REPRESENTING 1/16 OF A SHARE OF
CLASS A CUMULATIVE CONVERTIBLE PREFERRED STOCK
$100 PAR VALUE
----
SEE REVERSE FOR CERTAIN DEFINITIONS DEPOSITARY SHARES
FOURTH FINANCIAL CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF KANSAS
THIS CERTIFICATE IS TRANSFERABLE IN NEW YORK, NEW YORK OR WICHITA, KANSAS
BANK IV Kansas, National Association, a national banking association, duly
organized and existing under the laws of the United States, as Depositary (the
"Depositary")
hereby certifies that
is the registered owner of
Depositary Shares ("Depositary Shares"), each Depositary Share representing one
one-sixteenth (1/16) of a share of Class A Cumulative Convertible Preferred
Stock, $100 par value (the "Stock"), of Fourth Financial Corporation, a
corporation duly organized and existing under the laws of the State of Kansas
(the "Company"). Subject to the terms of a Deposit Agreement (the "Deposit
Agreement") among the Depositary, the Company and holders of receipts for
Depositary Shares ("Receipts"), each owner of a Depositary Share is entitled,
proportionately, to all the powers, preferences and rights and the
qualifications, limitations or restrictions of such preferences and/or rights of
the Stock represented thereby including dividends, voting, conversion,
redemption and liquidation rights as set forth in the Restated Articles of
Incorporation of the Company as amended and supplemented by the Certificate of
Designation (the "Certificate of Designation") fixing the terms of Stock filed
with the Secretary of State of the State of Kansas.
The Depositary will furnish without charge to any registered owner of
Depositary Shares who so requests copies of the Restated Articles of
Incorporation of the Company, Deposit Agreement and Certificate of Designation.
This Receipt shall not be valid or obligatory for any purpose, nor shall the
holder be entitled to any benefits under the Deposit Agreement, unless this
Receipt shall have been executed manually or by facsimile, or, if a Registrar
for the Receipts (other than the Depositary) shall have been appointed, by
manual or facsimile signature by the Depositary of a duly authorized officer
thereof, and if executed by facsimile signature of the Depositary, shall have
been countersigned manually by such Registrar by signature of a duly authorized
officer thereof.
BANK IV Kansas, National Association
Depositary, Transfer Agent and Registrar
------------------------------------------------
Authorized Signature
B-2
The Depositary will furnish without charge to any registered owner of Depositary
Shares who so requests, copies of the Restated Articles of Incorporation of the
Company, Deposit Agreement and Certificate of Designation. Any such request
should be addressed to the Depositary.
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 _________________________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors Act __________________________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares hereby
irrevocably exercises the option to convert that number of shares of Stock of
the Company, represented by ______________ Depositary Shares, into shares of
common stock, $5.00 par value, of the Company ("Common Stock") in accordance
with the terms of and subject to the conditions of such Stock, including the
Certificate of Designation in respect thereof and the Deposit Agreement, and
directs that the Common Stock deliverable upon such conversion be registered in
the name of and delivered together with a check in payment for any fractional
shares of Common Stock to the undersigned unless a different name has been
indicated below. If the shares of Common Stock are to be registered in the name
of a person other than the undersigned, the undersigned will pay all transfer
and similar taxes payable with respect thereto. If the number of shares of such
Stock represented by the number of Depositary Shares set forth above is less
than the number of shares of such Stock on deposit in respect of this Receipt,
the undersigned directs that the Depositary issue to the undersigned, unless a
different name is indicated below, a new Receipt evidencing Depositary Shares
for the balance of such Stock not be converted.
Dated: _________________________
NAME: __________________________
ADDRESS: _______________________ Signature: ________________________________
(Please print name and Note: The signature in this Notice of
address of Registered Holder) Conversion must correspond with the
name as written upon the face of this
Receipt in every particular, without
alteration or enlargement, or any
change whatever.
NAME: __________________________
ADDRESS: _______________________
(Please indicate other delivery
instructions if applicable)
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-------------------------
[ ]
[ ]
-------------------------
________________________________________________________________________________
the within Receipt, and all rights and interests represented by the Depositary
Shares evidenced thereby, and hereby irrevocably constitutes and appoints
_________________________________________________________________, his attorney,
to transfer the said Depositary Shares on the books of the within-named
Depositary, with full power of substitution in the premises.
Dated: _________________________
Signature: ________________________________
Note: The signature in this
Assignment must correspond with the
names as written upon the fact of this
Receipt in every particular, without
alteration or enlargement, or change
whatever.
B-3
