EXHIBIT 4.7
OLD KENT FINANCIAL CORPORATION,
________________________, as Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
Dated as of ____________, ____
TABLE OF CONTENTS
Page
ARTICLE I - Definitions. . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II - Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts. . . . . . . . . . . .3
SECTION 2.01. Form and Transfer of Receipts. . . . . . . . . . . . .3
SECTION 2.02 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. . . . . . . . . . . . . . . . . . . .4
SECTION 2.03. Registration of Transfer of Receipts . . . . . . . . .4
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock . . . . . . . . . . .5
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts . . . . . . . . . .6
SECTION 2.06. Lost Receipts, etc . . . . . . . . . . . . . . . . . .6
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts .6
[SECTION 2.08. Conversion Rights . . . . . . . . . . . . . . . . . .6
SECTION 2.09. Redemption or Exchange of Stock. . . . . . . . . . . .8
ARTICLE III - Certain Obligations of Holders of Receipts and the Company.10
SECTION 3.01. Filing Proofs, Certificates and Other Information. . 10
SECTION 3.02. Payment of Taxes or Other Governmental Charges . . . 10
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . . . . . . 11
SECTION 3.04. Warranty as to Receipts. . . . . . . . . . . . . . . 11
SECTION 3.05. Warranty as to Capital Securities. . . . . . . . . . 11
SECTION 3.06. Warrant as to Debt Securities. . . . . . . . . . . . 11
ARTICLE IV - The Deposited Securities; Notices . . . . . . . . . . . . . 11
SECTION 4.01. Cash Distributions . . . . . . . . . . . . . . . . . 11
SECTION 4.02. Distributions Other than Cash, Rights, Preferences
or Privileges. . . . . . . . . . . . . . . . . . . . 12
SECTION 4.03. Subscription Rights, Preferences or Privileges . . . 12
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for
Holders of Receipts. . . . . . . . . . . . . . . . . 13
SECTION 4.05. Voting Rights. . . . . . . . . . . . . . . . . . . . 14
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. . . . . . 14
SECTION 4.07. Delivery of Reports. . . . . . . . . . . . . . . . . 15
SECTION 4.08. Lists of Receipt Holders . . . . . . . . . . . . . . 15
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ARTICLE V - The Depositary, the Depositary's Agents, the Registrar and the
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar . . . . . . . . . . . . 15
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar
or the Company . . . . . . . . . . . . . . . . . . . 16
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. . . . . . . . 16
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . 17
SECTION 5.05. Corporate Notices and Reports. . . . . . . . . . . . 18
SECTION 5.06. Indemnification by the Company . . . . . . . . . . . 18
SECTION 5.07. Charges and Expenses . . . . . . . . . . . . . . . . 18
ARTICLE VI - Amendment and Termination . . . . . . . . . . . . . . . . . 18
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.02. Termination. . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII - Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . . . . . 19
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. . . . . . . . . . . 21
SECTION 7.07. Title. . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.08. Governing Law. . . . . . . . . . . . . . . . . . . . 21
SECTION 7.09. Inspection of Deposit Agreement. . . . . . . . . . . 21
SECTION 7.10. Headings . . . . . . . . . . . . . . . . . . . . . . 21
FORM OF FACE OF RECEIPT. . . . . . . . . . . . . . . . . . . . . . . . . .1
FORM OF REVERSE OF RECEIPT . . . . . . . . . . . . . . . . . . . . . . . .2
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ______________, ____, among OLD
KENT FINANCIAL CORPORATION, a Michigan corporation (the "Company"),
_______________________, a ______________________________________
("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 of shares of ________ Preferred
Stock, Series _____, $__________ liquidation preference per share (the
"Stock"), of OLD KENT FINANCIAL CORPORATION with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder
of Receipts evidencing Depositary Shares in respect of the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A, with appropriate insertions, modifications 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:
"Capital Securities" means any securities issued by the Company
that consist of any one of the following: (i) Common Stock, (ii) Perpetual
Preferred Stock, or (iii) other capital securities of the Company
acceptable to the Company's Primary Federal Regulator. Capital Securities
may have such terms, rights and preferences as may be determined by the
Company.
"Certificate" shall mean the certificate of designation
establishing a series of a class of Stock filed with the Department of
Consumer and Industry Services of the State of Michigan establishing the
Stock as a series of preferred stock of the Company.
"Common Stock" shall mean the common stock, par value $1.00 per
share, of the Company or any security into which the Common Stock may have
been changed.
"Company" shall mean Old Kent Financial Corporation, a Michigan
corporation, and its successors.
"Debt Securities" shall mean the senior or subordinated debt
securities of the Company issued in one or more series pursuant to the
Indentures.
"Deposit Agreement" shall mean this Deposit Agreement, as amended
or supplemented from time to time.
"Depositary" shall mean ______________________, and any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary shares, each
representing [specify fraction] of a share of Stock and evidenced by a
Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Indentures" shall mean the Indentures relating to the Debt
Securities of the Company.
"Perpetual Preferred Stock" means any stock of any class or
series of the Company that has a preference over Common Stock in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and that
is not mandatorily redeemable or repayable by the Company, or redeemable or
repayable at the option of the holder of such stock otherwise than in
shares of Common Stock or Perpetual Preferred Stock of another class of
series or with the proceeds of the sale of Common Stock or Perpetual
Preferred Stock.
"Primary Federal Regulator" means the Company's primary federal
banking regulator (which, at the date of this Deposit Agreement, is the
Board of Governors of the Federal Reserve System), or any successor body or
institution performing substantially the same regulatory function with
respect to the Company and the adequacy of its capital as such Board of
Governors performs on the date hereof.
"Receipt" shall mean one of the Depositary Receipts,
substantially in the form set forth as Exhibit A, issued hereunder, whether
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in definitive or temporary form and evidencing the number of Depositary
Shares held of record by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
ARTICLE II
Form of Receipts, Deposit of Stock,
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 Company or any holder of Stock,
as the case may be, delivered in compliance with Section 2.02, shall
execute and deliver temporary Receipts that are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at an office described in the
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 represented
by the surrendered temporary Receipt or Receipts. Such exchange shall be
made at the Company's expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Stock,
as definitive Receipts.
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Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; PROVIDED, that
such signature may be a facsimile if a Registrar for the Receipts (other
than the Depositary) shall have been appointed and such Receipts are
countersigned by a duly authorized officer of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid
or obligatory for any purpose unless it shall have been executed manually
by a duly authorized officer of the Depositary or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by manual
or facsimile signature of a duly authorized officer of the Depositary and
countersigned by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered
as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
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
Stock, the Depositary Shares or the Receipts may be listed or to conform
with any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt 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 record holder thereof at such time as the absolute
owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice provided
for in this Deposit Agreement and for all other purposes.
SECTION 2.02 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Stock may from time to time
deposit shares of the Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case
may be, directing the Depositary to execute and deliver to, or upon the
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written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited
Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's office or at such other place or places as the Depositary
shall determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock 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
Stock so deposited and registered in such name or names as may be requested
by such person or persons. The Depositary shall execute and deliver such
Receipt or Receipts at the Depositary's Office or such other offices, if
any, as the Depositary may designate. Delivery at other offices shall be
at the risk and expense of the person requesting such delivery.
SECTION 2.03. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer. Thereupon, the Depositary shall execute a new Receipt or
Receipts evidencing the same aggregate number of Depositary Shares as those
evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the person entitled thereto.
SECTION 2.04. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER
OF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may withdraw the Stock and all money and other
property, if any, represented thereby by surrendering such Receipt or
Receipts, at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without
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unreasonable delay, the Depositary shall deliver to such holder or to the
person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to
deposit such Stock hereunder or to receive Depositary Shares therefor. If
a Receipt delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of
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 and other
property, if any, to be so withdrawn, deliver to such holder, or upon his
order, a new Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are
to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holders
shall execute and deliver to the Depositary a written order so directing
the Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument
of transfer 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 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, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the
Depositary's Agents or the Company may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section
5.07, 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 or the Company may
establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts
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may be refused and the registration of transfer, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the
register of shareholders of the Company is closed or (ii) if any such
action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
SECTION 2.06. 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, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, upon (i) the filing by the
holder thereof with the Depositary of evidence satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof and (ii) the
furnishing of the Depositary with reasonable indemnification satisfactory
to it.
SECTION 2.07. 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 2.08. CONVERSION RIGHTS. Receipts may be surrendered
with written instructions to the Depositary to instruct the Company to
cause the conversion of any specified number of whole or fractional shares
of Stock represented by the Depositary Shares evidenced by such Receipts
into the number of whole shares of Capital Securities obtained by dividing
the aggregate liquidation preference of such Depositary Shares by the
Conversion Price (as such term is defined in the Certificate) then in
effect, as such Conversion Price may be adjusted by the Company from time
to time as provided in the Certificate. Subject to the terms and
conditions of this Deposit Agreement and the Certificate, a holder of a
Receipt or Receipts evidencing Depositary Shares representing whole or
fractional shares of Stock may surrender such Receipt or Receipts to the
Depositary at the Depositary's Office or to such office or to such
Depositary's Agents as the Depositary may designate for such purpose,
together with (i) a notice of conversion thereof duly completed and
executed (a "Notice of Conversion"), and (ii) any payment in respect of
dividends required by the fourth paragraph of this Section 2.08, thereby
directing the Depositary to instruct the Company to cause the conversion of
the number of shares or fractions thereof of underlying Stock specified in
such Notice of Conversion into whole shares of Capital Securities. In the
event that a holder delivers to the Depositary for conversion a Receipt or
Receipts that, in the aggregate, are convertible into less than one whole
share of Capital Securities or any number of whole shares of Capital
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Securities plus an excess constituting less than one whole share of Capital
Securities, the holder shall receive payment in lieu of such fractional
shares of Capital Securities otherwise issuable in accordance with the last
paragraph of this Section 2.08. If more than one Receipt shall be
delivered for conversion at one time by the same holder, the number of
whole shares of Capital Securities issuable upon conversion thereof shall
be computed on the basis of the aggregate number of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together
with a Notice of Conversion, duly completed and executed, directing the
Depositary to instruct the Company to cause the conversion of a specified
number of shares or fractions thereof of Stock, the Depositary shall, on
the date of receipt of such Notice of Conversion, instruct the Company (i)
to cause the conversion of the Depositary Shares evidenced by the Receipts
so surrendered for conversion as specified in the written Notice of
Conversion to the Depositary and (ii) to cause the delivery to the holder
or holders of such Receipts of a certificate or certificates evidencing the
number of whole shares of Capital Securities and the amount of money, if
any, to be delivered to the holders of Receipts surrendered for conversion
in payment of any fractional shares of Capital Securities. The Company
shall, as promptly as practicable after receipt thereof, cause the delivery
to such holder or holders of (i) a certificate or certificates evidencing
the number of whole shares of Capital Securities into which the Stock
represented by the Depositary Shares evidenced by such Receipt or Receipts
has been converted, and (ii) any money or other property to which the
holder or holders are entitled. The person or persons in whose name or
names any certificate or certificates for shares of Capital Securities
shall be issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby at the close
of business on the date such Receipt or Receipts shall have been
surrendered to and a Notice of Conversion received by the Depositary,
unless the stock transfer books of the Company shall be closed on that
date, in which event such person or persons shall be deemed to have become
such holder or holders of record on the next succeeding day on which such
stock transfer books are open. Upon such conversion, the Depositary (i)
shall deliver to the holder a Receipt evidencing the number of Depositary
Shares, if any, that such holder has elected not to convert in excess of
the number of Depositary Shares representing Stock that has been so
converted, (ii) shall cancel the Depositary Shares evidenced by Receipts
surrendered for conversion and (iii) shall deliver for cancellation to the
transfer agent for the Stock the shares of Stock represented by the
Depositary Shares evidenced by the Receipts so surrendered and so
converted.
If any Stock shall be called by the Company for redemption or
exchange, the Depositary Shares representing such Stock may be converted
into Capital Securities as provided in this Deposit Agreement until and
including, but not after, the close of business on the Redemption Date or
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the Exchange Date (each as defined below) unless the Company shall default
in making payment of the amount payable upon such redemption. Upon receipt
by the Depositary of a Receipt or Receipts representing any Stock called
for redemption or exchange, together with a properly completed and executed
Notice of Conversion, the shares of Stock held by the Depositary
represented by such Depositary Shares for which conversion is requested
shall be deemed to have been received by the Company for conversion.
Upon any conversion of the Stock underlying the Depositary
Shares, no allowance, adjustment or payment shall be made with respect to
accrued dividends upon such Stock except that if any holder of a Receipt
surrenders such Receipt with instructions to the Depositary for conversion
of the underlying Stock evidenced thereby during the period between the
opening of business on any dividend record date and the close of business
on the corresponding dividend payment date (except shares called for
redemption or exchange on a Redemption Date or Exchange Date during such
period), such Receipt must be accompanied by a payment equal to the
dividend thereon, if any, which the holder of record of such Receipt is
entitled to receive on such dividend payment date in respect of the
underlying Stock to be converted.
Upon the conversion of any shares of Stock for which a Notice of
Conversion has been received by the Depositary, all dividends in respect of
such Depositary Shares shall cease to accrue, such Depositary Shares shall
be deemed no longer outstanding, all rights of the holder of the Receipt
with respect to such Depositary Shares (except the right to receive the
Capital Securities, any cash payable with respect to any fractional shares
of Capital Securities as provided herein and any cash payable on account of
accrued dividends in respect of the Stock so converted and any Receipts
evidencing Depositary Shares not so converted) shall terminate, and the
Receipt evidencing such Depositary Shares shall be cancelled in accordance
with Section 2.07 hereof.
No fractional shares of Capital Securities shall be issuable upon
conversion of Stock underlying the Depositary Shares. If, except for the
provisions of this Section 2.08 and the Certificate, any holder of Receipts
surrendered with instructions to the Depositary for conversion of the
underlying Stock would be entitled to a fractional share of Capital
Securities upon such conversion, the Company shall cause to be delivered to
such holder an amount in cash for such fractional share determined in
accordance with the Certificate.]
SECTION 2.09. REDEMPTION OR EXCHANGE OF STOCK. Whenever the
Company shall be permitted and shall elect to redeem or exchange shares of
Stock in accordance with the provisions of the Certificate, it shall
(unless otherwise agreed to in writing with the Depositary) give or cause
to be given to the Depositary not less than 10 days' and not more than 60
days' notice of the date of such proposed redemption or exchange of Stock
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and of the number of such shares held by the Depositary to be so redeemed
or exchanged and (i) the applicable redemption price or (ii) the class and
stated value or tenor and aggregate principal amount of Capital Securities
or Debt Securities to be issued in exchange, as set forth in the
Certificate, which notice shall be accompanied by a certificate from the
Company stating that such redemption or exchange of Stock is in accordance
with the provisions of the Certificate. On the date of such redemption or
exchange, provided that the Company shall then have paid or caused to be
paid in full to the Depositary the redemption price of the Stock to be
redeemed or the Capital Securities or Debt Securities to be issued in
exchange for stock to be exchanged, plus an amount equal to any accrued and
unpaid dividends thereon to the date fixed for redemption or exchange, in
accordance with the provisions of the Certificate, the Depositary shall
redeem the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of the Company's redemption or exchange of
Stock and the proposed simultaneous redemption or exchange of the number of
Depositary Shares representing the Stock to be redeemed or exchanged by
first-class mail, postage prepaid, not less than 10 and not more than 60
days prior to the date fixed for redemption or exchange of such Stock and
Depositary Shares (the "Redemption Date" or the "Exchange Date",
respectively), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed or exchanged, at the addresses of such
holders as they appear on the records of the Depositary; but neither
failure to mail any such notice of redemption or exchange of Depositary
Shares to one or more such holders nor any defect in any notice of
redemption or exchange of Depositary Shares to one or more such holders
shall affect the sufficiency of the proceedings for redemption or exchange
as to the other holders. Each such notice shall state: (i) the Redemption
Date or Exchange Date; (ii) the number of Depositary Shares to be redeemed
or exchanged and, if less than all the Depositary Shares held by any such
holder are to be redeemed or exchanged, the number of such Depositary
Shares held by such holder to be so redeemed or exchanged; (iii) (a) the
redemption price or (b) the class and stated value or tenor and aggregate
principal amount of Capital Securities or Debt Securities to be issued in
exchange; (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; (v) the
then current conversion price; and (vi) that dividends in respect of the
Stock represented by the Depositary Shares to be redeemed or exchanged will
cease to accrue on such Redemption Date or Exchange Rate. In case less
than all the outstanding Depositary Shares are to be redeemed or exchanged,
the Depositary Shares to be so redeemed or exchanged shall be selected by
the Depositary by lot or PRO RATA (as nearly as practicable) or by any
other method, in each case, as determined by the Company in its sole
discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date or Exchange Date, as the case may be (unless
the Company shall have failed to provide the funds or Capital Securities or
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Debt Securities necessary to redeem or exchange the Stock evidenced by the
Depositary Shares called for redemption or exchange), (i) dividends on the
shares of Stock so called for Redemption or exchange shall cease to accrue
from and after such date, (ii) the Depositary Shares being redeemed or
exchanged from such proceeds shall be deemed no longer to be outstanding,
(iii) all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price or the Capital
Securities or Debt Securities to be issued in exchange) shall, to the
extent of such Depositary Shares, cease and terminate, and (iv) upon
surrender in accordance with such redemption or exchange notice of the
Receipts evidencing any such Depositary Shares called for redemption or
exchange (properly endorsed or assigned for transfer, as the Depositary or
applicable law shall so require), such Depositary Shares shall be redeemed
or exchanged by the Depositary at a redemption price per Depositary Share
equal to [specify fraction] of the redemption price per share or market
value of Capital Securities or Debt Securities per Depositary Share paid in
respect of the shares of Stock so redeemed or exchanged plus all money and
other property, if any, represented by such Depositary Shares, including
all amounts paid by the Company in respect of dividends which on the
Redemption Date or Exchange Date have accumulated on the shares of Stock to
be so redeemed or exchanged and have not therefore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption or exchange, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary, together with
the redemption payment or Capital Securities or Debt Securities issued upon
exchange, a new Receipt evidencing the Depositary Shares evidenced by such
prior receipt and not called for redemption or exchange.
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, or other matters or other information, to execute such
certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the
registration of transfer, redemption or exchange, of any Receipt or the
withdrawal or conversion of the 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 until
such proof or other information is filed or such certificates are executed
or such representations and warranties are made.
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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 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 or any
part of or all the 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 hereby
represents and warrants that the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable, subject to
Michigan Compiled Laws Section 450.1551. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. WARRANTY AS TO RECEIPTS. The Company hereby
represents and warrants that the Receipts, when issued, will represent
legal and valid interests in the Stock. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.05. WARRANTY AS TO CAPITAL SECURITIES. The Company
hereby represents and warrants that the Capital Securities issued upon
conversion of the Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable, subject to Michigan Compiled Laws
Section 450.1551. Such representation and warranty shall survive the
conversion of the Stock into such Capital Securities.
SECTION 3.06. WARRANT AS TO DEBT SECURITIES. The Company hereby
represents and warrants that (i) Debt Securities issued upon exchange of
the Stock, when issued, will be duly authorized and, when such Debt
Securities are duly executed, authenticated and delivered in the manner
provided for in the applicable Indenture, such Debt Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable against the Company in
accordance with their terms, and (ii) the applicable Indenture has been
duly authorized by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except in each case as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
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general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies. Such representation and warranty shall survive the
exchange of the Stock for such Debt Securities.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 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 Stocks
an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by
the Depositary (without liability for interest thereon) and shall be added
to and be treated as part of the next sum received by the Depositary for
distribution to record holders of 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 Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
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 record holders, or if for any other
reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it
deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any
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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 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 such securities or property to the Depositary and the Depositary shall
not make any distribution of such securities or property to the holders of
Receipts unless the Company shall have provided an opinion of counsel
stating that such securities or property have been registered under the
Securities Act or do not need to be registered in connection with such
distributions.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such
manner as the Depositary may determine, either by the issue to such record
holders of warrants representing such rights, preferences or privileges or
by such other method as may be approved by the Depositary in its discretion
with the approval of the Company; PROVIDED, HOWEVER, that (i) if at the
time of issue or offer of any such rights, preferences or privileges the
Depositary determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or privileges
available to holders of Receipts by the issue of warrants or otherwise, or
(ii) if and to the extent so instructed by holders of Receipts who do not
desire to exercise such rights, preferences or privileges, then the
Depositary, in its discretion (with approval of the Company, in any case
where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or
the terms of such rights, preferences or privileges permit such transfer,
sell such rights, preferences or privileges at public or private sale, at
such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record 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 agrees with the
Depositary that it will file promptly a registration statement pursuant to
the Securities Act with respect to such rights, preferences or privileges
and securities and use its reasonable best efforts and take all steps
reasonably available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights,
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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, and the Company shall have provided to
the Depositary an opinion of counsel to such effect.
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 reasonable best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders
to exercise such rights, preferences or privileges.
SECTION 4.04. 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 Stock, or whenever the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote or of which holders
of Stock are entitled to notice, or whenever the Depositary and the Company
shall decide it is appropriate, the Depositary shall in each such instance
fix a record date (which shall be the same date as the record date fixed by
the Company with respect to or otherwise in accordance with the terms of
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.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice that shall contain (i) such information as is contained
in such notice of meeting and (ii) a statement that the holders may,
subject to any applicable restrictions, instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Stock represented
by their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy
to a person designated by the Company) 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
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number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions
are received. The Company hereby agrees to take all reasonable action that
may be deemed necessary by the Depositary in order to enable the Depositary
to vote such Stock or cause such Stock to be voted. In the absence of
specific instructions from the holders of Receipts, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted, in accordance
with the Company's recommendations, the maximum number of whole shares of
stock represented by the Depositary Shares evidenced by all Receipts as to
which no specific instructions have been given.
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
Stock, or upon any recapitalization, reorganization, merger or
consolidation affecting the Company or to which it is a party, the
Depositary may in its discretion with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments as are certified
by the Company in the fraction of an interest represented by one Depositary
Share in one share of Stock as may be necessary fully to reflect the
effects of such change in par or stated value, split-up, combination or
other reclassification of Stock, or of such recapitalization,
reorganization, merger or consolidation and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of
or in respect of the Stock as new deposited securities so received in
exchange for or upon conversion or in respect of such Stock. In any such
case the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. 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 or consolidation 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
property and cash into which the Stock represented by such Receipts might
have been converted or for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07. DELIVERY OF REPORTS. The Depositary shall furnish
to holders of Receipts any reports and communications received from the
Company that are received by the Depositary as the holder of Stock.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a
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list, as of the most recent practicable date, of the names, addresses and
holdings of Depositary Shares of all record 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 of Receipts, and at the offices of the
Depositary's Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which books at
all reasonable times shall be open for inspection by the record holders of
Receipts; PROVIDED that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares
evidenced thereby. If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall be listed
on one or more national stock exchanges, the Depositary will appoint a
Registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares or Stock in accordance with any requirements of such
exchange. Such Registrar (which may be the Depositary if so permitted by
the requirements of any such exchange) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the approval
of the Company. If the Receipts, Depositary Shares or Stock are listed on
one or more other stock exchanges, the Depositary will, at the request of
the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts,
Depositary Shares or Stock as may be required by law or applicable stock
exchange regulation.
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SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither
the Depositary nor any Depositary's Agent nor any Registrar nor the Company
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of the
United States of America or of any other governmental authority or, in the
case of the Depositary, the Depositary's Agent or the Registrar, by reason
of any provision, present or future, of the Company's Restated Articles of
Incorporation (including the Certificate) or by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, the Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from, or subjected to any penalty on account of,
doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur 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, willful misconduct or bad faith of the party
charged with such exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation
or shall be subject to any liability under this Deposit Agreement to
holders of Receipts other than for its negligence, willful misconduct or
bad faith.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of the
Stock, the Depositary Shares or the Receipts that in its opinion may
involve it in expense or liability unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any failure to
act by it in reliance upon the written advice of legal counsel or
accountants, or information from any person presenting Stock for deposit,
any holder of a Receipt or any other person believed by it in good faith to
be competent to give such information. The Depositary, any Depositary's
Agent, any Registrar and the Company may each rely and shall each be
protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
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The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the shares of Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is
in good faith. The Depositary undertakes, and any Registrar shall be
required to undertake, to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no implied covenants
or obligations shall be read into this Deposit Agreement against the
Depositary or any Registrar. The Depositary will indemnify the Company and
hold it harmless from any loss, liability or expense (including the
reasonable costs and expenses of defending itself) that may arise out of
acts performed or omitted by the Depositary or the Depositary's Agents in
connection with this Deposit Agreement due to its or their negligence,
willful misconduct or bad faith. The indemnification obligations of the
Depositary set forth in this Section 5.03 shall survive any termination of
this Deposit Agreement and any succession of any Depositary. The
Depositary, the Depositary's Agents, and any Registrar 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.
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 notice of its election to do so to
the Company, such resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
In case 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. If no successor Depositary shall have
been so appointed and have accepted appointment within 60 days after
delivery of such notice, the resigning or removed Depositary may petition
any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute
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and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and
deliver all right, title and interest in the Stock and any moneys or
property held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding 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 record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without
the execution or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor Depositary may
authenticate the Receipts in the name of the predecessor Depositary or in
the name of the successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees
that it will transmit to the record holders of Receipts, in each case at
the addresses furnished to it pursuant to Section 4.08, all notices and
reports (including financial statements) required by law or by the rules of
any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against,
and hold each of them harmless from, any loss, liability or expense
(including the reasonable costs and expenses of defending itself) which may
arise out of acts performed or omitted in connection with this Deposit
Agreement and the Receipts by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any
liability arising out of negligence, willful misconduct or bad faith on the
respective parts of any such person or persons. The obligations of the
Company set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent.
SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all
charges of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Depositary Shares, all withdrawals of
shares of the Stock by owners of Depositary Shares, and any redemption or
exchange of the Stock at the option of the Company. All other transfer and
other taxes and governmental charges shall be at the expense of holders of
Receipts. If, at the request of a holder of Receipts, the Depositary
incurs charges or expenses for which it is not otherwise liable hereunder,
such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent hereunder
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and of any Registrar (including, in each case, reasonable fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for charges and
expenses to the Company at such 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 that they may deem necessary or desirable; PROVIDED, HOWEVER, that
no such amendment (other than any change in the fees of any Depositary,
Registrar or transfer agent, which shall go into effect not sooner than
three months after notice thereof to the holders of the Receipts) that
shall materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding.
Every holder of an outstanding Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such receipt, to
consent and agree to such amendment and to be bound by the Depositary
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 a day that is not
later than 30 days after the date of such notice, the Depositary shall
deliver or make available for delivery to each record holder of Receipts,
upon surrender of the Receipt or Receipts held by such record holder, such
number of whole or fractional shares of Stock represented by such Receipt
or Receipts. If the record holder of any Receipt or Receipts shall not
have so surrendered such Receipt or Receipts in exchange for whole or
fractional shares of Stock on or prior to the effective date of termination
of this Deposit Agreement, such record holder shall for all purposes,
including the payment of dividends, be deemed to be a record holder of the
appropriate number of whole or fractional shares of Stock previously
represented by such Receipt or Receipts and shall thereafter surrender to
the Company such Receipt or Receipts in exchange for whole or fractional
shares of Stock.
This Deposit Agreement shall automatically terminate after [(i)
all outstanding Depositary Shares have been redeemed pursuant to Section
2.09, (ii) each share of Stock shall have been converted into or exchanged
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for, as the case may be, shares of Capital Securities or Debt Securities or
(iii)] there shall have been made a final distribution in respect of the
Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary, any Depositary's Agent and any Registrar
under Sections 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.
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 facsimile transmission confirmed by letter, addressed to the
Company at
Old Kent Financial Corporation
βββ ββββ ββββββ β.β.
βββββ ββββββ, ββββββββ βββββ
Attention: Secretary
Telephone No.: (βββ) βββ-ββββ
Facsimile No.: (616) 771-____
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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 Depositary's Office, at_______________________, or at any other address
of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission 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 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, postage prepaid, in
a post office letter box. The Depositary or the Company may, however, 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 will notify the
Company of any such action.
The Company hereby also appoints the Depositary as Registrar and
transfer 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. TITLE. The Company, each Depositary, and any
agent of the Company or the Depositary may treat the registered owner of
any Depositary Share as the absolute owner thereof (whether or not any
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payment in respect of such Depositary Share is overdue and notwithstanding
any notice to the contrary) for the purpose of making payment and all other
purposes.
SECTION 7.08. 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 7.09. 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 7.10. 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.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first set forth
above, 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.
OLD KENT FINANCIAL CORPORATION
Attested By
_____________________________ By
Attested By [Name of Depositary]
______________________________ By
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Exhibit A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY
SHARES
CERTIFICATE FOR ____________ DEPOSITARY SHARES
TDR
DEPOSITORY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING [TITLE OF] PREFERRED STOCK OF
OLD KENT FINANCIAL CORPORATION
CUSIP _________
INCORPORATED UNDER THE LAWS OF THE STATE OF MICHIGAN
SEE REVERSE FOR CERTAIN
DEFINITIONS
______________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of
DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction] of
one share of _______ Preferred Stock (the "Stock"), of Old Kent Financial
Corporation, a Michigan corporation (the "Corporation"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of ______________, _____ (the "Deposit Agreement"), between
the Corporation and the Depositary. By accepting this Depositary Receipt, the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in facsimile by
the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by a duly authorized officer thereof.
Dated: [Countersigned:
_______________________________ _______________________________________
Depositary Registrar
By By
Authorized Officer Authorized Officer]
[FORM OF REVERSE OF RECEIPT]
OLD KENT FINANCIAL CORPORATION
OLD KENT FINANCIAL CORPORATION WILL FURNISH WITHOUT CHARGE TO
EACH RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A
COPY OR SUMMARY OF THE CERTIFICATE OF DESIGNATION OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK OF THE [TITLE OF] PREFERRED STOCK OF OLD KENT
FINANCIAL CORPORATION. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE
DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
_____________________
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________
_______________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
_________________________________________________________________
________________________________________________Depositary Shares
represented by the within Receipt, and do(es) hereby irrevocably constitute
and appoint ______________________ Attorney to transfer the said Depositary
Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated________________
__________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the
face of this Receipt in every particular,
without alteration or enlargement or any
change whatever.
SIGNATURE GUARANTEED
___________________________