Exhibit 10.8
FORM OF DEPOSIT AGREEMENT
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NB CAPITAL CORPORATION,
NATIONAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA
TRUST COMPANY OF NEW YORK
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of March __, 1998
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TABLE OF CONTENTS
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Form of Receipts, Deposit of Preferred Shares,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. . . . . . . . . . . . . 2
SECTION 2.02. Deposit of Preferred Shares; Execution and Delivery
of Receipts in Respect Thereof. . . . . . . . . . . . . 4
SECTION 2.03. Registration of Transfer of Receipts. . . . . . . . . . 5
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Preferred Shares. . . . . 5
SECTION 2.05. Limitations on Execution and Delivery,
Transfers, Surrender and Exchange of Receipts. . . . . 6
SECTION 2.06. Lost Receipts, etc.. . . . . . . . . . . . . . . . . . 6
SECTION 2.07. Optional Redemption of Preferred Shares. . . . . . . . 6
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts.. . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.09. Automatic Exchange . . . . . . . . . . . . . . . . . 8
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information. . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.02. Payment of Taxes or Other Governmental Charges.. . . . 9
SECTION 3.03. Warranty as to Preferred Shares. . . . . . . . . . . . 9
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions.. . . . . . . . . . . . . . . . . . 10
SECTION 4.02. Distributions Other than Cash, Rights,
Preferences or Privileges. . . . . . . . . . . . . . . 10
SECTION 4.03. Subscription Rights, Preferences or Privileges.. . . . 11
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date
for Holders of Receipts. . . . . . . . . . . . . . . . 12
SECTION 4.05. Voting Rights. . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. . . . . . . 13
SECTION 4.07. Delivery of Reports. . . . . . . . . . . . . . . . . . 13
SECTION 4.08. Lists of Receipt Holders.. . . . . . . . . . . . . . . 13
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar.. . . . . . . . . . . . . 14
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Company or the Bank. . . . . . . . . . 14
SECTION 5.03. Obligation of the Depositary, the Bank and the
Company. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. . . . . . . . . . 16
SECTION 5.05. Corporate Notices and Reports. . . . . . . . . . . . . 17
SECTION 5.06. Indemnification. . . . . . . . . . . . . . . . . . . . 17
SECTION 5.07. Charges and Expenses.. . . . . . . . . . . . . . . . . 18
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.02. Termination. . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts.. . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . . . . . . . .20
SECTION 7.03. Invalidity of Provisions.. . . . . . . . . . . . . . . 20
SECTION 7.04. Notices. . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.05. Depositary's Agents. . . . . . . . . . . . . . . . . . 21
SECTION 7.06. Holders of Receipts Are Parties. . . . . . . . . . . . 22
SECTION 7.07. Governing Law. . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.08. Inspection of Deposit Agreement. . . . . . . . . . . . 22
SECTION 7.09. Headings.. . . . . . . . . . . . . . . . . . . . . . . 22
SCHEDULE I
EXHIBIT A -- Form of Receipt
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DEPOSIT AGREEMENT, dated as of March __, 1998, among NB CAPITAL
CORPORATION, a Maryland corporation (the "Company"), NATIONAL BANK OF CANADA,
a Canadian chartered bank (the "Bank"), THE BANK OF NOVA SCOTIA TRUST COMPANY
OF NEW YORK, a New York banking corporation (the "Depositary"), and the
holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide as hereinafter set forth in this
Deposit Agreement, for the deposit from time to time of shares of 8.35%
Noncumulative Exchangeable Preferred Stock, Series A, par value US$0.01 per
share, liquidation preference US$1,000 per share (the "Series A Preferred
Shares"), of the Company with the Depositary for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of receipts,
substantially in the form set forth as Exhibit A hereto, issued hereunder,
whether in definitive or temporary form ("Receipts") evidencing a number of
depositary shares that each represent a one-fortieth interest (1/40th) in a
Series A Preferred Share ("Depositary Shares") so deposited;
WHEREAS, as described under Section 2.09 of this Deposit Agreement, upon
the occurrence of certain events (a) each Series A Preferred Share shall be
exchanged automatically for one 8.45% Noncumulative First Preferred Share,
Series Z, of the Bank (the "Bank Preferred Shares" and, together with the
Series A Preferred Shares, the "Preferred Shares"), (b) each Depositary Share
shall represent a one-fortieth (1/40th) interest in a Bank Preferred Share
and no longer represent a fractional interest in a Series A Preferred Share
and (c) the rights and obligations of the Company under this Deposit
Agreement shall become the rights and obligations of the Bank; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modification and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree 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:
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal corporate trust office of
the Depositary in New York City, at which at any particular time its
depositary receipt business shall be administered.
"Exchange Offer" shall mean the offer by the Company to exchange up to
238,400 Series A Preferred Shares that are not subject to transfer
restrictions ("New Preferred Shares") for up to 238,400 Series A Preferred
Shares currently outstanding ("Old Preferred Shares") at the rate of one New
Preferred Share for each Old Preferred Share properly tendered.
"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.
"Xxxxxxx Xxxxx" shall mean Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, the initial purchaser of the Series A Preferred Shares.
"Registrar" shall mean the Depositary or such other bank or trust
company that shall be appointed to register ownership and transfers of
Receipts as herein provided as well as to effect transfers and the
distribution of dividends with respect to the Series A Preferred Shares.
"Securities Act" shall mean the Securities Act of 1933, as amended.
ARTICLE II
Form of Receipts, Deposit of Preferred Shares,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the
written order of the Bank or the Company delivered in compliance with Section
2.02, shall execute and deliver temporary Receipts that are printed,
lithographed, typewritten, photocopied or otherwise substantially of the
tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as
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evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Bank, the Company and the Depositary shall cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at an office
described in the penultimate paragraph of Section 2.02, without charge to the
holder. Upon surrender for cancellation of any one or more temporary
Receipts, the Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary Shares as are
represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be, subject to Section 5.07, made at the Company's expense and without
any charge therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same rights under this Deposit Agreement, and
with respect to the Preferred Shares, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual signature of a duly authorized signatory of the Registrar; provided
that no Receipt shall be entitled to any rights under this Deposit Agreement
or be valid or obligatory for any purpose unless it shall have been executed
manually by a duly authorized signatory of the Depositary or, if a Registrar
for the Receipts shall have been appointed, by manual or facsimile signature
of a duly authorized signatory of the Depositary and countersigned manually
by a duly authorized signatory of such Registrar. The Depositary shall record
on its books each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Preferred Shares or
the Depositary Shares may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that 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
2.03, the Depositary may, notwithstanding any notice to the contrary, treat
the holder of record at such time as the absolute owner thereof for the
purpose of determining the person
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entitled to distributions of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Shares; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the holders of Series A Preferred Shares may from time to
time deposit such shares under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Series A Preferred Shares
to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may
be required by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order of such holder to the
Depositary instructing the Depositary to execute and deliver to the person or
persons stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited Series A Preferred Shares;
provided, however, that holders of Series A Preferred Shares other xxxx
Xxxxxxx Xxxxx who do not tender their Series A Preferred Shares into the
Exchange Offer shall be precluded from depositing their Series A Preferred
Shares with the Depositary until such time as the applicable holding period
with respect to such Series A Preferred Shares has expired and such Series A
Preferred Shares have become freely transferable.
Upon receipt by the Depositary of a certificate or certificates for
Series A Preferred Shares deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and
upon recordation of the Series A Preferred Shares on the books of the Company
in the name of the Depositary or its nominee, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall execute and deliver, to
or upon the order of the person or persons named in the written order
delivered to the Depositary referred to in the first paragraph of this
Section, a Receipt or Receipts for the number of Depositary Shares
representing the Series A Preferred Shares so deposited and registered in
such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Immediately upon the occurrence of an Exchange Event (as defined in
Section 2.09), each Depositary Share shall represent a one-fortieth (1/40th)
interest in a Bank Preferred Share and shall no longer represent a fractional
interest in a Series A Preferred Share. In the event of the foregoing, the
Bank shall record the Bank Preferred Shares on its books in the name of the
Depositary or its nominee.
Deposited Preferred Shares shall be held by the Depositary at the
Depositary's office or at such other place or places as the Depositary shall
determine.
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Other than in the case of splits, combinations or other
re-classification affecting the Preferred Shares, or in the case of dividends
or other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than 300,000 Preferred Shares.
SECTION 2.03. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, including payment of the fees
of the Depositary as provided in Section 5.07, the Depositary shall register
on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer.
Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the
Receipt or Receipts surrendered and deliver such new Receipt or Receipts to
or upon the order of the person entitled thereto.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Preferred Shares. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
in the authorized denomination or denominations requested, evidencing the
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Any holder of a Receipt or Receipts representing any number of whole
Preferred Shares may withdraw the Preferred Shares and all money and other
property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder or to the
person or persons designated by such holder as hereinafter provided, the
number of whole Preferred Shares and all money and other property, if any,
represented by the Depositary Shares evidenced by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole Preferred Shares shall
not thereafter be entitled to deposit such Preferred Shares hereunder or to
receive Depositary Shares therefor. If a Receipt delivered by the holder to
the Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing
the number of whole Series A Preferred Shares to be so withdrawn, the
Depositary shall at the same time, in addition to such number of whole
Preferred Shares and such money and other property, if any, to be so
withdrawn, deliver to such holder, or pursuant to his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the
Preferred Shares and money and other property, if any, being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
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If the Preferred Shares and the money and other property, if any, being
withdrawn are to be delivered to a person or persons other than the holder of
the Receipt or Receipts being surrendered for withdrawal of Preferred Shares,
such holder shall execute and deliver to the Depositary a written order so
directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for the withdrawal of such Preferred
Shares be properly endorsed in blank or accompanied by a properly executed
instrument of transfer in blank.
Delivery of the Preferred Shares and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place
as may be designated by such holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfers,
Surrender and Exchange of Receipts. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the Depositary's
Agents, the Bank or the Company may require payment to it of a sum sufficient
for the payment (or, in the event that the Depositary, any of the
Depositary's Agents, the Bank or the Company shall have made such payment,
the reimbursement to it) of any charges or expenses payable by the holder of
a Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with such regulations, if any, as the Depositary,
the Bank or the Company may establish consistent with the provisions of this
Deposit Agreement.
The deposit of Preferred Shares may be refused, the delivery of Receipts
against Preferred Shares may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender or
exchange of outstanding Receipts may be suspended (i) during any period when
the register of stockholders of the Company or the Bank, as the case may be,
is closed or (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents, the Bank 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 2.06. Lost Receipts, etc. In case any receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu
of and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the holder thereof shall have (i) filed
with the Depositary (a) a request for such execution and delivery before the
Depositary has received notice that the Receipt has been
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acquired by a bona fide purchaser and (b) a sufficient indemnity bond and
(ii) satisfied any other reasonable requirements imposed by the Depositary.
SECTION 2.07. Optional Redemption of Preferred Shares. If the Company
or the Bank, as the case may be, shall elect to redeem Preferred Shares
pursuant to the charter of the Company or the Bank, as the case may be, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 45 days' notice of the date of such proposed
redemption of Preferred Shares, the number of Preferred Shares held by the
Depositary to be redeemed and the redemption price. On the date of such
redemption, provided that the Company or the Bank, as the case may be, shall
then have paid in full to the Depositary the redemption price (determined
pursuant to the charter of the Company or the Bank, as the case may be) of
the Preferred Shares deposited with the Depositary to be redeemed, the
Depositary shall redeem (using the proceeds of such redemption) the
Depositary Shares relating to such Preferred Shares. The Depositary shall
mail, first class postage prepaid, notice of the redemption of Preferred
Shares and the proposed simultaneous redemption of the Depositary Shares
relating to the Preferred Shares to be redeemed, not less than 30 days and
not more than 60 days prior to the date fixed for redemption of such
Preferred Shares and Depositary Shares (the "Redemption Date"), to the
holders on the record date fixed for such redemption pursuant to Section 4.04
of the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same 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 shall affect the sufficiency of the
proceedings for redemption as to the other holders. Each such notice shall
state: (i) the record date for purposes of such redemption; (ii) the
Redemption Date; (iii) the aggregate number of Depositary Shares to be
redeemed and, if fewer than all the Depositary Shares held by any holder are
to be redeemed, the number of Depositary Shares held by such holder to be so
redeemed; (iv) the redemption price; (v) the place or places where Receipts
evidencing Depositary Shares to be redeemed are to be surrendered for payment
of the redemption price; and (vi) that dividends in respect of the Preferred
Shares represented by the Depositary Shares to be redeemed shall cease to
accrue at the close of business on such Redemption Date. In case fewer than
all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed shall be selected by lot or pro rata or by any other
substantially equivalent method determined by the Depositary with the
approval of the Company.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the
Preferred Shares to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Preferred Shares called for redemption shall cease to accrue, the Depositary
Shares called for redemption shall be deemed no longer to be outstanding and
all rights of the holders of Receipts evidencing such Depositary Shares
(except the right to receive the redemption price) shall, to the extent of
such Depositary Shares, cease and terminate.
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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), such Depositary Shares shall be redeemed at a
redemption price per Depositary Share equal to one-fortieth (1/40th) times
the redemption price per share paid in respect of Preferred Shares pursuant
to the charter of the Company or the Bank, as the case may be, plus all money
and other property, if any, represented by such Depositary Shares, including
all amounts paid by the Company in respect of dividends that on the
Redemption Date have accrued on the Preferred Shares to be so redeemed and
that have not theretofore been paid. The foregoing shall be subject further
to the terms and conditions of the charter of the Bank and the Company.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary shall deliver to the holder of such
Receipt upon its surrender to the Depositary, together with payment of the
redemption price for the Depositary Shares called for redemption, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
Except as provided in the preceding paragraph of this Section 2.07, the
Depositary shall not be required to transfer or exchange for another Receipt
any Receipt evidencing Depositary Shares called or being called for
redemption in whole or in part.
The Depositary shall remit to the Company or the Bank any funds
deposited by or for the account of the Company or the Bank for the purpose of
redeeming any Depositary Shares that the holders thereof have failed to
redeem after one year from the date of such deposit, without further action
necessary on the part of the Company.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
SECTION 2.09. Automatic Exchange. Each Series A Preferred Share shall
be exchanged automatically (the "Automatic Exchange") for one Bank Preferred
Shares (i) immediately prior to such time, if any, at which the Bank fails to
declare and pay or set aside for payment when due any dividend on any issue
of its cumulative First Preferred Shares or the Bank fails to pay or set
aside for payment when due any declared dividend on any of its noncumulative
First Preferred Shares, (ii) in the event that the Bank has a Tier 1
risk-based capital ratio of less than 4.0% or a total risk-based capital
ratio of less than 8.0%, (iii) in the event that the Superintendent of
Financial Institutions (the "Superintendent") takes control of the Bank
pursuant to the Bank Act (Canada), as amended (the "Bank Act"), or
proceedings are commenced for the winding-up of the Bank pursuant to the
Winding-up and Restructuring Act
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(Canada), or (iv) in the event that the Superintendent, by order, directs the
Bank to act pursuant to subsection 485(3) of the Bank Act and the Bank elects
to cause the exchange (each, an "Exchange Event"). Immediately upon the
occurrence of an Exchange Event, each Depositary Share shall represent a
one-fortieth interest (1/40th) in a Bank Preferred Share and shall no longer
represent a fractional interest in a Series A Preferred Share and all of the
rights and obligations of the Company under this Deposit Agreement shall
become the rights and obligations of the Bank.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence (including, without limitation, any proof of residence of such
holder or its affiliates requested by the Bank in compliance with the Bank
Act), or other matters or other information, to execute such certificates and
to make such representations and warranties as the Depositary, the Bank or
the Company may reasonably deem necessary or proper. The Depositary, the
Bank or the Company may withhold the delivery, or delay the registration of
transfer, redemption or exchange, of any Receipt or the withdrawal of the
Preferred Shares represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution or the sale
of any property or rights or of the proceeds thereof until such proof or
other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer
of any Receipt or any withdrawal of Preferred Shares and all money or other
property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or any part of or
all the Preferred Shares or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means to notify
such holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Receipt remaining
liable for any deficiency.
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SECTION 3.03. Warranty as to Preferred Shares. The Company hereby
represents and warrants that the Series A Preferred Shares, have been duly
authorized, validly issued, fully paid and nonassessable. The Bank hereby
represents and warrants that the Bank Preferred Shares, if issued, will be
duly authorized, validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the Preferred
Shares and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Preferred Shares, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to holders
of Receipts on the record date fixed pursuant to Section 4.04 (net of the
fees of the Depositary as provided in Section 5.07 hereof) such amounts of
such dividend or distribution as are, as nearly as practicable, in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts held
by such holders; provided, however, that in case the Company or the
Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Preferred Shares an
amount on account of taxes, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced accordingly.
The Depositary shall distribute or make available for distribution, as the
case may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and
any balance not so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and be treated as part
of the next sum received by the Depositary for distribution to holders of
Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other
than cash, rights, preferences or privileges upon Preferred Shares, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of
the securities or property received by it as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the
opinion of the Depositary such distribution cannot be made proportionately
among such holders, or if for any other reason (including any requirement
that the Company, the Bank or the Depositary withhold an amount on account of
taxes or governmental charges) the Depositary deems such distribution not to
be feasible, the Depositary may, with the approval of the Company or the
Bank, sell (at public or private sale) such securities or property thus
received, or any part thereof, at such place or places and upon
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such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.01 and 3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to such 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 such securities
unless the Company shall have provided an opinion of counsel stating that
such securities have been registered under the Securities Act or do not need
to be so registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company or the Bank shall at any time offer or cause to be offered to the
persons in whose names Preferred Shares are recorded on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the holders of Receipts in such manner as the
Depositary may determine, either by the issue to such holders of warrants
representing such rights, preferences or privileges or by such other method
as may be determined by the Depositary with the approval of the Company or
the Bank; provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that it is
not lawful or (after consultation with the Company or the Bank) not feasible
to make such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (ii) if and to the extent
so instructed by holders of Receipts who do not desire to exercise such
rights, preferences or privileges, then the Depositary may (with approval of
the Company or the Bank in any case where the Depositary has determined that
it is not feasible to make such rights, preferences or privileges available),
if applicable laws or the terms of such rights, preferences or privileges
permit such transfer, sell such rights, preferences or privileges at public
or private sale, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.01
and 3.02, be distributed by the Depositary to the holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company and the Bank agree with the
Depositary that it shall file promptly a registration statement pursuant to
such Act with respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps available to it to
cause such registration statement to become effective sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until such registration statement shall have become effective, or unless
the offering and sale of such securities to such holders are exempt from
registration under the provisions of the Securities Act.
11
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
shall 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. The costs of any such action taken or associated
with obtaining any such authorization, consent or permit shall be borne as
contemplated by Section 5.07.
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for Holders
of Receipts. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered with respect
to Preferred Shares, or whenever the Depositary shall receive notice of (i)
any meeting at which holders of Preferred Shares are entitled to vote or of
which holders of Preferred Shares are entitled to notice or (ii) any election
on the part of the Company or the Bank, as the case may be, to redeem any
Preferred Shares, or whenever the Depositary and the Company or the Bank, as
the case may be, 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 or otherwise in accordance with the
terms of the Preferred Shares) 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 whose Depositary
Shares are to be redeemed or for any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Preferred Shares are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the holders on the record
date (which shall be the same record date as the record date for the
Preferred Shares) of Receipts entitled thereto a notice that shall contain
(i) such information as is contained in such notice of meeting and (ii) a
statement that such holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the number of whole Preferred Shares underlying their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the
Company or the Bank, as the case may be) and a brief statement as to the
manner in which such instructions may be given. Upon the written request of
the holders of Receipts on the relevant record date, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted, in accordance
with the instructions set forth in such requests, the maximum number of whole
Preferred Shares represented by the Depositary Shares evidenced by all
Receipts as to which any particular voting instructions are received,
provided that the Depositary receives such instructions sufficiently in
advance of such voting to enable it to so vote or cause to be voted.
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The Company and the Bank hereby agree to take all reasonable action that may
be deemed necessary by the Depositary in order to enable the Depositary to
vote such Preferred Shares or cause such Preferred Shares to be voted. In the
absence of specific instructions from the holder of a Receipt, the Depositary
shall abstain from voting (but, in its discretion, not from appearing at any
meeting with respect to such Preferred Shares unless directed to the contrary
by the holders of all the Receipts) to the extent of the Preferred Shares
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Preferred
Shares, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or the Bank, as the case may be, or to
which the Company or the Bank, as the case may be, is a party, the Depositary
may in its discretion with the approval of, and shall upon the instructions
of, the Company or the Bank, as the case may be, and (in either case) in such
manner as the Depositary may deem equitable, (i) make such adjustments as are
certified by the Company or the Bank, in the fraction of an interest
represented by one Depositary Share in one Preferred Share as may be
necessary to fully reflect the effects of such change in par or stated value,
split-up, combination or other reclassification of Preferred Shares, or of
such recapitalization, reorganization, merger, amalgamation or consolidation
and (ii) treat any securities that shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Preferred Shares as
new deposited securities so received in exchange for or upon conversion or in
respect of such Series A Preferred Shares. Other than with respect to an
Automatic Exchange, in which case outstanding Receipts shall immediately upon
the occurrence of the related Exchange Event represent a one-fortieth
(1/40th) interest in a Bank Preferred Share and shall no longer represent a
fractional interest in a Series A Preferred Share, in any such case the
Depositary may, with the approval of the Company or the Bank, 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 Preferred Shares or any such recapitalization,
reorganization, merger, amalgamation or consolidation to surrender such
Receipts to the Depositary with instructions to convert, exchange or
surrender the Preferred Shares represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Preferred Shares represented by such
Receipts might have been converted or for which such Preferred Shares might
have been exchanged or surrendered immediately prior to the effective date of
such transaction.
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SECTION 4.07. Delivery of Reports. The Depositary shall furnish to
holders of Receipts any reports and communications received from the Company
or the Bank, as the case may be, that are received by the Depositary as the
holder of Preferred Shares.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
time to time by the Company or the Bank, the Depositary shall furnish to it a
list, as of a recent date, of the names, addresses and holdings of all
holders of Receipts.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit
and withdrawal of Preferred Shares, and at the offices of the Depositary's
Agents, if any, facilities for the delivery, registration of transfer,
surrender and exchange, split-up, combination and redemption of Receipts and
deposit and withdrawal of Preferred Shares, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the holders of Receipts;
provided that any such holder requesting to exercise such right shall certify
in writing to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company or the Bank,
appoint a Registrar for registration of the Receipts or the Depositary Shares
evidenced thereby. If the Depositary Shares or the Preferred Shares
represented by such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary shall appoint a Registrar (acceptable to the Company
or the Bank) for registration of the Depositary Shares in accordance with any
requirements of such Exchange. Such Registrar (which may be the Depositary
if so permitted by the requirements of such Exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company or the Bank. If the
14
Depositary Shares or the Preferred Shares are listed on one or more other
stock exchanges, the Depositary shall, at the request of the Company or the
Bank, arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange of such Depositary Shares or such Preferred
Shares as may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
the Company or the Bank. The Depositary, the Company and the Bank shall not
incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of the
United States of America or of any other governmental authority or by reason
of any provision, present or future, of the Company's or the Bank's charter
or of the Depositary Shares or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the
Company or the Bank shall be prevented or forbidden from, delayed in, or
subjected to any penalty on account of, doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary or the Company or the Bank incur liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement shall provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement except, in the case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
Where, by the terms of a distribution pursuant to Sections 4.01 or 4.02
of this Deposit Agreement, or an offering or distribution pursuant to Section
4.03 of this Deposit Agreement, or for any other reason, such distribution or
offering may not be made available to holders of Receipts, and the Depositary
may not dispose of such distribution or offering on behalf of such holders
and make the net proceeds available to such holders, then the Depositary
shall not make such distribution or offering, and shall allow any rights, if
applicable, to lapse.
SECTION 5.03. Obligation of the Depositary, the Bank and the Company.
The Depositary, the Bank and the Company shall not assume any obligation or
shall be subject to any liability under this Deposit Agreement to holders of
Receipts except that each of them agrees (i) to use its best judgment and
good faith in the performance of such duties as are specifically set forth in
this Deposit Agreement and (ii) that it shall be liable for negligence or
willful misconduct in the performance of such duties as are specifically set
forth in this Deposit Agreement.
The Depositary, the Bank and the Company shall not be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Preferred
15
Shares, the Depositary Shares or the Receipts that in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense and liability shall be furnished as often as may be required.
The Depositary, the Bank and the Company shall not be liable for any
action or any failure to act by it in reliance upon the advice of legal
counsel or accountants, or information from any person presenting Preferred
Shares for deposit, any holder of a Receipt or any other person believed by
it in good faith to be competent to give such advice or information. The
Depositary, the Bank and the Company may each rely and shall each be
protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the Preferred Shares or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes to perform such duties and only such duties
as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Deposit Agreement against
the Depositary. The Depositary may also act as transfer agent or registrar
of any of the securities of the Company and the Bank and their affiliates.
The Depositary undertakes not to issue any Receipt other than to
evidence the Depositary Shares then on deposit with the Depositary. The
Depositary also undertakes not to sell (except as provided herein), pledge or
lend the Preferred Shares or the Depositary Shares held by it as Depositary.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering written notice of its election to do so to the
Company or the Bank, such resignation to take effect upon the appointment of
a successor Depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company or the Bank by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company or the Bank shall, within 60 days after the delivery of
the notice of resignation or
16
removal, as the case may be, appoint a successor Depositary. If no successor
Depositary shall have been so appointed and have accepted appointment within
60 days after delivery of such notice, the resigning or removed Depositary
may terminate this Depositary Agreement. Every successor Depositary shall
execute and deliver to its predecessor and to the Company or the Bank an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties 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 upon the written
request of the Company or the Bank, 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 Preferred Shares and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the holders of
all outstanding Receipts and such records, books and other information in its
possession relating thereto. Any successor Depositary shall promptly mail
notice of its appointment to the holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without
the execution or filing of any document or any further act, and notice
thereof shall be given to the Company and the Bank prior to the consummation
thereof.
SECTION 5.05. Corporate Notices and Reports. The Company and the Bank
agree that they shall transmit to the holders of Receipts, in each case at
the addresses furnished to it pursuant to Section 4.08, all notices and
reports (including without limitation financial statements) required by law
or by the rules of any national securities exchange upon which the Preferred
Shares, the Depositary Shares or the Receipts are listed, to be furnished to
the holders of Receipts. Such transmission shall be, subject to Section
5.07, at the Company's expense.
SECTION 5.06. Indemnification. Subject to Section 5.07, the Company
and the Bank agree to indemnify the Depositary, its directors, employees,
agents and affiliates and any Depositary's Agent against, and hold each of
them harmless from, any liability or expense (including, but not limited to,
the reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a
Depositary's Agent or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence
or bad faith of any of them, or (ii) by the Bank or the Company or any of
their directors, employees, agents and affiliates.
17
The Depositary agrees to indemnify the Bank and the Company, their
respective directors, employees, agents and affiliates and hold them harmless
from any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or
omitted by the Depositary or a Depositary's Agent or their respective
directors, employees, agents and affiliates due to their negligence or bad
faith. The obligations set forth in this Section 5.06 shall survive the
termination of this Deposit Agreement and any succession or substitution of
any Depositary.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification in writing
(the "indemnifying person") of the commencement of any action or claim in
respect of which indemnification may be sought promptly after such
indemnified person becomes aware of such commencement (provided that the
failure to make such notification shall not affect such indemnified person's
rights under this Section 5.06) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim,
which shall be reasonable in the circumstances. No indemnified person shall
compromise or settle any such action or claim without the consent of the
indemnifying person.
SECTION 5.07. Charges and Expenses. All charges and expenses
(including reasonable costs and expenses of counsel) of the Depositary
referenced in this Deposit Agreement as payable by the Company shall be
directly invoiced by the Depositary to, and directly paid to the Depositary
by, Xxxxxxx Xxxxx pursuant to a letter agreement entered into by the
Depositary and Xxxxxxx Xxxxx on the date hereof. Schedule I hereto provides
a listing of the fees and expenses of the Depositary. In addition, any
amount due to the Depositary under Section 5.06 shall be paid directly by
Xxxxxxx Xxxxx after receipt of notification by Xxxxxxx Xxxxx from the
Depositary that such an amount is due and payable.
Holders of Receipts evidencing Depositary Shares shall not be
responsible for transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. All other transfer
and other taxes and governmental charges shall be at the expense of Holders
of Receipts evidencing Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable under the Deposit Agreement or Xxxxxxx Xxxxx is not
otherwise liable pursuant to the letter agreement described in the
immediately preceding paragraph, such holder shall be liable for such charges
and expenses.
ARTICLE VI
Amendment and Termination
18
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 Bank, the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment which imposes or increases any fees, taxes or other charges upon
the holders of Receipts (other than taxes and governmental charges, fees and
other expenses payable by such holders as provided for under Section 5.07
above) or which otherwise shall materially and adversely alter the rights of
the holders of Receipts shall be effective unless such amendment shall have
been approved by the holders of at least a majority of the Depositary Shares
then outstanding. Notwithstanding the foregoing, in no event may any
amendment impair the right of any holder of any Receipts, upon surrender of
such Receipts and subject to any conditions specified in this Deposit
Agreement, to receive Preferred Shares and any money or other property
represented thereby, except in order to comply with mandatory provisions of
applicable law. Every holder of an outstanding Receipt at the time any such
amendment becomes effective in accordance with its terms shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and
to be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be terminated by
the Company at any time upon not less than 60 days' prior written notice to
the Depositary, in which case, upon such termination, the Depositary shall
deliver or make available for delivery to holders of Receipts, upon surrender
of the Receipt or Receipts held by such holder, and upon payment of any
applicable taxes or governmental charges, such number of whole Preferred
Shares represented by such Receipt or Receipts. The Depositary may likewise
terminate this Deposit Agreement by mailing notice of such termination to the
Company or the Bank and the holders of all Receipts then outstanding if at
any time 60 days shall have expired after the Depositary shall have delivered
to the Company or the Bank a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04. If the holder of any Receipt or
Receipts shall not have surrendered such Receipt or Receipts in exchange for
whole Preferred Shares on or prior to the effective date of termination of
this Deposit Agreement, such holder shall for all purposes, including the
payment of dividends, be deemed to be a holder of the appropriate number of
whole Preferred Shares previously represented by such Receipt or Receipts and
shall thereafter surrender to the Company such Receipt or Receipts in
exchange for whole Preferred Shares.
If any Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the holders thereof,
and shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit Agreement, except
that the Depositary shall continue to collect dividends and other
distributions pertaining to the Preferred Shares, shall sell rights as
provided in this Deposit
19
Agreement, and shall continue to deliver such Preferred Shares, together with
any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the holder of such Receipt in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or
governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell such Preferred Shares then held
hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, without
liability for interest, for the pro rata benefit of the holders which have
not theretofore surrendered their Receipts. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges).
This Deposit Agreement shall automatically terminate after there shall
have been made a final distribution in respect of the Preferred Shares in
connection with any liquidation, dissolution or winding up of the Company or
the Bank and such distribution shall have been distributed to the holders of
Receipts pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Bank and the Company
shall be discharged from all obligations under this Deposit Agreement except
for its obligations to the Depositary and any Depositary's Agent and any
Registrar under Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
manually or by facsimile transmission in any number of counterparts, and by
each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original,
but all such counterparts taken together shall constitute one and the same
instrument.
SECTION 7.02. 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.
20
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
or the Bank 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 facsimile transmission confirmed by letter, addressed to the
Company or the Bank at
NB Capital Corporation
National Bank of Canada
National Bank of Canada Building
0000 xxx Xxxxxxx
0xx xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Telephone No: (000) 000-0000
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile
transmission confirmed by letter, addressed to the Depositary at
The Bank of Nova Scotia Trust Company of New York
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No: (000) 000-0000.
or at any other address of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any 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 facsimile
transmission confirmed by letter, addressed to such holder at the address of
such 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.
21
Delivery of a notice sent by mail or by telegram or facsimile
transmission 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 facsimile transmission) is deposited, first class postage
prepaid, in a post office letter box. The Depositary, the Bank or the
Company may, however, without liability, act upon any telegram or facsimile
transmission received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this 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 shall notify the Company or the Bank of
any such action and shall remain responsible for the performance of its
obligations hereunder as if no Depositary Agent were appointed.
The Company and the Bank hereby also appoints the Depositary as
Registrar and Transfer Agent and as Paying Agent in respect of the Receipts
and the Depositary hereby accepts such appointments.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be
bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder
of a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or the Receipts or to have any bearing upon
the meaning or interpretation of any provision contained herein or in the
Receipts.
22
IN WITNESS WHEREOF, the Company, the Bank 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.
NB CAPITAL CORPORATION
By ______________________
Name:
Title:
NATIONAL BANK OF CANADA
By ______________________
Name:
Title:
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK
By ______________________
Name:
Title:
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER______________
DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING 8.35% NONCUMULATIVE EXCHANGEABLE PREFERRED STOCK; SERIES A, OF
NB CAPITAL CORPORATION
CUSIP_______________
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND. SEE REVERSE FOR
CERTAIN DEFINITIONS
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Depositary (the
"Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a one-fortieth
(1/40th) interest in a share of 8.35% Noncumulative Exchangeable Preferred
Stock, Series A, par value US$0.01 per share, value US$1,000.00 per share
(the "Series A Preferred Shares"), of NB Capital Corporation, a Maryland
corporation (the "Company"), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement dated as of March
__, 1998 (the "Deposit Agreement"), among the Corporation, National Bank of
Canada, a Canadian chartered bank (the "Bank"), the Depositary and the
holders from time to time of the Depositary Receipts issued thereunder.
Immediately upon the occurrence of an Exchange Event (as defined in the
Deposit Agreement), each Depositary Share will represent a one-fortieth
(1/40th) interest in a 8.45% Noncumulative First Preferred Share, Series Z,
of the Bank and will no longer represent a fractional interest in a Series A
Preferred Share. By accepting this Depositary Receipt the holder hereof
becomes a party to and agrees to be bound by all the terms and conditions of
the Deposit Agreement. This Depositary Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized signatory or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized signatory thereof.
Dated:
Countersigned and Registered:
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA
TRUST COMPANY OF NEW YORK TRUST COMPANY OF NEW YORK
Registrar Depositary
By By
[FORM OF REVERSE OF RECEIPT]
NB CAPITAL CORPORATION
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO REQUESTS
A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF ITS CHARTER
PROVIDING THE POWERS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER RIGHTS, AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF,
OF THE SERIES A PREFERRED SHARES OF THE COMPANY. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
--------------
The following abbreviations, when used in the instructions 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 _____
(Minor) (Cust)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with ______________________________
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
For value received, _____ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------------------------------------------------
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE
_______________________________________________________________________________
___________________________ Depositary Shares represented by the within Receipt,
hereby irrevocably constituting and appointing ________________________________
_____________________ Attorney to transfer the said Depositary Shares on the
books of the within named Depositary with full power of substitution in the
premises.
Dated: _____________________
_____________________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the face
of this Receipt in every particular, without
alteration or enlargement or any change whatever
