Exhibit 4(b)
FLEET FINANCIAL GROUP, INC.
FLEET NATIONAL BANK, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
----------------
Deposit Agreement
Series VII Fixed/Adjustable Rate Cumulative
Preferred Stock
of Fleet Financial Group, Inc.
----------------
Dated as of April 1, 1996
TABLE OF CONTENTS
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary Shares . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary's Agent . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary's Office . . . . . . . . . . . . . . . . . . . . . . . . 1
Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Record holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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 . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof . . . . . . 2
SECTION 2.03. Redemption of Stock . . . . . . . . . . . 3
SECTION 2.04. Registration of Transfer of Receipts . . . 4
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipt and Withdrawal of
Stock . . . . . . . . . . . . . . . . . 4
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts . . . . . . . . . . . . . . . . 4
SECTION 2.07. Lost Receipts, etc. . . . . . . . . . . . 5
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts . . . . . . . . . . . 5
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . . . . 5
i
Page
----
SECTION 3.02. Payment of Taxes or Other Governmental
Charges . . . . . . . . . . . . . . . . 5
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . 5
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions . . . . . . . . . . . . 5
SECTION 4.02. Distributions Other than Cash . . . . . . 6
SECTION 4.03. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . . . 6
SECTION 4.04. Notice of Dividends, etc.; Fixing of
Record Date for Holders of Receipts . . . 6
SECTION 4.05. Voting Rights . . . . . . . . . . . . . 7
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations,
etc. . . . . . . . . . . . . . . . . . . 7
SECTION 4.07. Inspection of Reports . . . . . . . . . . 7
SECTION 4.08. Lists of Receipts Holders . . . . . . . . 7
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 . . . . . . . . . . . . . . . 8
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company . . 8
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and
the Company . . . . . . . . . . . . . . 8
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary . . . . . . . . . . . . . . . 9
SECTION 5.05. Corporate Notices and Reports . . . . . . 9
SECTION 5.06. Indemnification by the Company . . . . . . 9
SECTION 5.07. Charges and Expenses . . . . . . . . . . . 10
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . 10
SECTION 6.02. Termination . . . . . . . . . . . . . . . 10
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . 10
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . 10
SECTION 7.03. Invalidity of Provisions . . . . . . . . . 10
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . 11
SECTION 7.05. Depositary's Agents . . . . . . . . . . . 11
SECTION 7.06. Holders of Receipts Are Parties . . . . . 11
ii
Page
----
SECTION 7.07. Governing Law . . . . . . . . . . . . . . 11
SECTION 7.08. Inspection of Deposit Agreement . . . . . 11
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . 11
Testimonium . . . . . . . . . . . . . . . . . . . . . 12
Signatures . . . . . . . . . . . . . . . . . . . . . 12
Exhibit A: Depositary Receipt . . . . . . . . . . . . . . . . . . A-1
iii
DEPOSIT AGREEMENT
dated as of April 1, 1996,
among
FLEET FINANCIAL GROUP, INC.,
a Rhode Island corporation,
Fleet National Bank, a national banking association
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 Series VII Fixed/Adjustable Rate
Cumulative Preferred Stock; $1 par value, of FLEET FINANCIAL GROUP, INC. with
the Depositary (as hereinafter defined) for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts (as hereinafter
defined) evidencing Depositary Shares, each representing a one-fifth interest
in respect of the Stock (as hereinafter defined) so deposited;
WHEREAS the Receipts are to be substantially in the form of Exhibit A
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designation filed with the
Secretary of State of Rhode Island establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean Fleet Financial Group, Inc., a Rhode Island
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean Fleet National Bank, a national banking
association, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a one-
fifth interest in 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 in
Providence, Rhode Island, at which at any particular time its depositary receipt
business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record holder" as applied with respect to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
1
"Registrar" shall mean any bank or trust company which shall be appointed
to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's Series VII Fixed/Adjustable
Rate Cumulative Preferred Stock, $1 par value.
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 and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered for deposit in
compliance with Section 2.02, shall execute and deliver temporary Receipts which
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 the Depositary's Office, 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 as
definitive Receipts under this Agreement, and with respect to the Stock.
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 manual signature of 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 facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
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 which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, 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 purchasers of the Stock from time to time may from time to time
deposit shares of 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
2
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
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order, a Receipt or Receipts for the
number of Depositary Shares representing interests in such deposited 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, or in
the name of such other purchaser, as applicable, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall execute and deliver, to or
upon the order of the person or persons named in the written order delivered to
the Depositary referred to in the first paragraph of this Section, a Receipt for
the number of Depositary Shares relating to the 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 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. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 30 nor more than 60 days notice of the date of such
proposed redemption of Stock in accordance with Section (c) of the Certificate.
On the date of such redemption, provided that the Company shall then have paid
in full to the Depositary the redemption price of the Stock to be redeemed, the
Depositary shall redeem the Depositary Shares relating to such Stock. The
Depositary shall mail notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares relating to the Stock to be
redeemed, first-class postage prepaid, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares
(the "Redemption Date"), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accumulate at the close of business on such Redemption Date. In case less
than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata as may be
determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Stock to be redeemed by it as set forth in the Company's notice provided for
in the preceding paragraph) all dividends in respect of the shares of Stock so
called for redemption shall cease to accumulate, the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, all
rights of the holders of Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the extent of such Depositary
Shares, cease and terminate and, upon surrender in accordance with such notice
of the Receipts evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed by the Depositary at a redemption price per Depositary
Share equal to one-tenth of the redemption price per share paid in respect of
the shares of Stock plus all money and other property, if any, underlying such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If less than all Depositary Shares evidenced by a Receipt are called for
redemption, the Depositary will deliver to the holder of such Receipt upon its
surrender to the Depositary, together with the redemption payment, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
3
SECTION 2.04. 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 2.05. Split-ups and Combinations of Receipts; Surrender of Receipt
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 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 whole number of
deposited shares of Stock may withdraw such shares of 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 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 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 shares of Stock will not
thereafter be entitled to deposit such shares of 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 deposited Depositary Shares
representing the number of shares of Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of shares of Stock and such
money and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Section 2.03) upon his order, a new Receipt evidencing such excess
number of Depositary Shares. Delivery of the shares of 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 shares of 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 the Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be
appropriately endorsed or accompanied by a properly executed instrument of
transfer.
Delivery of the shares of 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 2.06. 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 shares of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the 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.
4
SECTION 2.07. 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 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE 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 distribution of any dividend or other
distribution on the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Changes. 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 and delivery of all money or other property, if any, represented by
the Depositary Shares evidenced by such Receipt may be refused until any such
payment due is made, and any dividends, interest payments or other distributions
may be withheld or all or any part of the Stock or other property underlying 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 validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock 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 Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of receipts on the record
date fixed pursuant to Section 4.04 such amount 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 Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The 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.
5
SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts of 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 such sale shall, subject to Section 3.02, be distributed
or made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash.
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 the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall be 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 1933 of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective, or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders
of Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to 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, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts who shall be
entitled to receive a distribution in respect of such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale
6
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or to receive 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 which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement informing holders of Receipts that they may instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Stock underlying their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give their
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 such record date, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted, in accordance with
the instructions set forth in such requests, the maximum number of whole shares
of Stock underlying the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to such Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the Stock underlying 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 Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation or
sale of all or substantially all the Company's assets affecting the Company or
to which it is a party, the Depositary may 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 in
(a) the fraction of an interest in one share of Stock underlying one Depositary
Share and (b) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effects of such change in par or stated value, split-up, combination
or other reclassification of Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation or sale and (ii) treat any securities
which shall be received by the Depositary in exchange for or upon conversion 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 Stock or any such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with instructions to
convert, exchange or surrender the shares of Stock attributable thereto 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 attributable to such
Receipts was converted or for which such Stock was exchanged or surrendered
after giving effect to such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make available
for inspection by holders of Receipts at the Depositary's Office, and at such
other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. List of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Stock of all persons in
whose names Receipts are registered on the books of the Depositary or
Registrar, as the case may be.
7
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.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
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,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
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), as amended to date (the "Articles of Incorporation"), or by reason
of any act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, the Depositary's Agent, the Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed; or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the gross negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.03. 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 gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
8
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.
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, as long as any such action or nonaction is in good faith. The
Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Depositary or any Registrar. The Depositary will
indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their gross
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Receipts. The Depositary 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 notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary 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 the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. Every successor Depositary 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 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. 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. 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 address
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law, the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company's Articles of Incorporation (including the
Certificate) to be furnished by the Company to holders of Stock. 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 costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with the Agreement and the Receipts (a) by
the Depositary, any Registrar or any of their respective agents (including any
9
Depositary's Agent), except for any liability arising out of gross negligence or
bad faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Receipts or the Stock pursuant to the provisions hereof.
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, and redemption of the Stock at the option of
the Company and all withdrawals of the shares of Stock by owners of Depositary
Shares. All other transfer and other taxes and governmental charges shall be at
the expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
once every three months or at such other intervals as the Company and the
Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03 or (ii) 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, and 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
10
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 telegram or telex
confirmed by letter, addressed to the Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to the attention of the Treasurer, or at any other address
of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or at any other address of
which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram or telex confirmed
by letter, addressed to such record holder at the address of such record holder
as it appears on the books of the Depositary, or if such holder shall have filed
with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex message received by it from the
other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect of the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be 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 RHODE
ISLAND.
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.
11
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
FLEET FINANCIAL GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
____________________________________
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________________
Title: Assistant Treasurer
12
EXHIBIT A
THE DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT ARE NOT SAVINGS ACCOUNTS,
DEPOSITS OR OTHER OBLIGATIONS OF FLEET NATIONAL BANK, THE DEPOSITARY HEREUNDER,
OR OF ANY OTHER BANK OR NONBANK SUBSIDIARY OF FLEET FINANCIAL GROUP, INC. AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE
FUND OR ANY OTHER GOVERNMENT AGENCY.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING AN INTEREST IN ONE-FIFTH OF
A SHARE OF SERIES VII FIXED/ADJUSTABLE RATE CUMULATIVE
PREFERRED STOCK
($1 Par Value)
OF
FLEET FINANCIAL GROUP, INC.
(Incorporated under the Laws of the State of Rhode Island)
_______________
Depositary Shares
(each Depositary Share represents an interest
in one-fifth of a share of Series VII
Fixed/Adjustable Rate Cumulative Preferred
Stock ($1 par value))
CUSIP NO. 338915 77 0
1. Fleet National Bank, a national banking association with an office at
the time of the execution of the Deposit Agreement (as defined below) at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Depositary's Office")
as Depositary (the "Depositary"), hereby certifies that [ ] is the
registered owner of [ ] Depositary Shares ("Depositary Shares") each
Depositary Share representing an interest in one-fifth (1/5) of a share of
Series VII Fixed/Adjustable Rate Cumulative Preferred Stock, $1 par value (the
"Stock"), of Fleet Financial Group, Inc., a corporation duly organized and
existing under the laws of the State of Rhode Island (the "Company"). Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, through the Depositary to all the rights and
preferences of the Stock relating thereto, including dividend, voting,
conversion, redemption and liquidation rights contained in the Certificate of
Designations adopted by the Company's Board of Directors setting forth the
number, terms, powers, designations, rights, preferences, qualifications,
restrictions and limitations of the Stock (the "Certificate"), copies of which
are on file at the Depositary's Office.
2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of April 1, 1996 (the "Deposit Agreement"),
among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the
Depositary's Office) sets forth the rights of holders of Receipts and the rights
and duties of the Depositary and the Company in respect of the Stock deposited,
and any and all other property and cash deposited from time to time thereunder.
The statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall be permitted and shall elect,
under the Certificate, to redeem shares of the Stock, it shall give the
Depositary not less than 30 nor more than 60 days notice thereof. The
Depositary shall mail notice of such redemption and the simultaneous redemption
of the corresponding Depositary Shares not less than 30 and not more than 60
days prior to the date fixed for redemption to the holders of record of Receipts
representing
A-1
the number of Depositary Shares to be redeemed. Each such notice shall state:
(a) the date of such proposed redemption; (b) the number of Depositary Shares to
be redeemed; (c) the redemption price (which shall include full cumulative
dividends thereon to the redemption date); (d) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (e) that dividends in respect of the Stock underlying the
Depositary Shares to be redeemed will cease to accumulate at the close of
business on such redemption date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Depositary to
be equitable. From and after the date set for redemption, all dividends in
respect of the Depositary Shares so called for redemption shall cease to accrue,
such Depositary Shares shall no longer be deemed outstanding and all rights of
the holders of Receipts representing such Depositary Shares (except the right to
receive the redemption price) shall cease and terminate. From and after the
redemption date, upon surrender in accordance with the redemption notice of the
Receipts representing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at the redemption price per share equal to one-
tenth (1/10) of the redemption price per share paid in respect of the shares of
Stock plus any money or other property relating thereto.
4. Transfer, Split-ups, Combinations, Surrender of Receipts. This Receipt
is transferable on the books of the Depositary upon surrender of this Receipt to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer, and upon such transfer, the Depositary shall execute a
new Receipt to or upon the order of the person entitled thereto, as provided in
the Deposit Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt, representing the same aggregate
number of Depositary Shares as the Receipt or Receipts surrendered. Any holder
of this Receipt may surrender this Receipt at the Depositary's Office or at such
other offices that the Depositary may designate to withdraw shares of Stock and
all money and other property, if any, underlying the Depositary Shares
represented by this Receipt. As a condition precedent to any transfer or
surrender for exchange of this Receipt, the Depositary, any of the Depositary's
Agents or the Company may require payment of certain charges or expenses or 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
the Deposit Agreement.
5. Suspension of Delivery, Transfer, etc. The transfer or surrender of
this Receipt may be suspended during any period when the register of
stockholders of the Company is closed or if any such action is deemed necessary
or advisable by the Depositary, any agent of the Depositary, 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 the
Deposit Agreement.
6. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to this Receipt, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder hereof. Transfer of this
Receipt may be refused until such payment is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of the Stock
or other property relating to this 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 tax or charge, the holder of this Receipt remaining liable for
any deficiency.
7. Warranty by Company. The Company has warranted that the Stock when
issued, will be validly issued, fully paid and nonassessable.
8. Amendment. The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable, provided, however, that no such amendment which shall materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of at least a majority of
the Depositary Shares then outstanding. A holder of a Receipt at the time any
such amendment so becomes effective shall be deemed, by continuing to hold such
receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby.
A-2
9. Charges of Depositary. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements, and all charges of the Depositary in connection with
the initial deposit of the Stock and the initial issuance of the Depositary
Shares and redemption of the Stock at the option of the Company. All other
transfer and other taxes and other governmental charges shall be at the expense
of holders of Depositary Shares. All other charges and expenses of the
Depositary and any agent of the Depositary will be paid upon consultation and
agreement between the Depositary and the Company.
10. Title to Receipts. This Receipt (and the Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a properly executed instrument
of transfer, is 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, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distributions of dividends or other distributions or to any notice
provided for in the Deposit Agreement, and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the Receipt holders as nearly as practicable in proportion to the number of
Depositary Shares held by them; provided, however, that the amount distributed
will be reduced by any amounts required to be withheld by the Company or the
Depositary on account of taxes. Other distributions received on the Stock may be
distributed to holders of Receipts as provided in the Deposit Agreement.
12. Fixing of Record Date. 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, the Depositary shall in each instance fix a record date
(which shall be the record date fixed by the Company with respect to the Stock),
for the determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting.
13. Voting Rights. Upon receipt of notice of any meeting at which holders
of Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Receipts a notice which shall contain
(a) such information as is contained in such notice of meeting and (b) a
statement informing holders of Receipts that they may instruct the Depositary as
to the exercise of the voting rights pertaining to the amount of Stock relating
to their respective Depositary Shares and a brief statement as to the manner in
which such instructions may be given. Upon the written request of a holder of a
Receipt on such record date, the Depositary shall endeavor, insofar as
practicable, to vote or cause to be voted the amount of Stock relating to such
Receipt in accordance with the instructions set forth in such request. In the
absence of specific instructions from the holder of a Receipt, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of Receipts) to the extent of the Stock underlying the Depositary Shares
evidenced by such Receipt.
14. Changes Affecting Deposited Securities. Upon any change in par or
stated value, split-up, combination or any other reclassification of the Stock
or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, or upon the sale
of all or substantially all the Company's assets, the Depositary may in its
discretion with the approval of the Company, and in such manner as the
Depositary may deem equitable, (a) make such adjustments in (i) the fraction of
an interest in one share of Stock underlying one Depositary Share and (ii) the
ratio of the redemption price of a share of Stock, in each case as may be
necessary fully to reflect the effect of such change and (b) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion 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 outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities.
15. Liability and Obligations of the Depositary, the Depositary's Agent or
the Company. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company assumes any obligation or shall be subject to
A-3
any liability under the Deposit Agreement to any holder of any Receipt, other
than for its gross negligence or willful misconduct. 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 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, as amended
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond their control, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Receipt by
reasons of nonperformance or delay, caused as aforesaid, in performance of any
act or thing which by the terms of the Deposit Agreement it is provided shall
or may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement, other than
for its gross negligence or willful misconduct. Neither the Depositary nor
any Depositary's Agent nor the Company assumes any obligation or shall be
subject to any liability under the Deposit Agreement to holders of Receipts
other than to use its best judgment and good faith in the performance of such
duties as are specifically set forth in the Deposit Agreement. 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, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished.
The Deposit Agreement contains various other exculpatory, indemnification and
related provisions, to which reference is hereby made.
16. Resignation and Removal of Depositary. The Depositary may at any time
(a) resign by written notice of its election to do so delivered to the Company,
such resignation to take effect upon the appointment of a successor Depositary
and its acceptance of such appointment, or (b) be removed by the Company
effective upon the appointment of a successor Depositary and its acceptance of
such appointment.
17. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary only upon or after the occurrence of
any of the following events: (a) all outstanding Depositary Shares shall have
been redeemed or (b) 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
Receipts. Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations thereunder except for its obligations to the
Depositary with respect to indemnification, charges and expenses.
18. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT 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 RHODE ISLAND.
This receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been authenticated manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and, if authenticated by facsimile
signature of the Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING CERTAIN
PROVISIONS OF THE DEPOSIT AGREEMENT WHICH APPEARS IN THE DEPOSITARY RECEIPTS.
THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY,
GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES
OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORDHOLDERS OF THE DEPOSITARY
RECEIPTS TO THE DEPOSITARY SHARES.
A-4
A COPY OF THE DEPOSIT AGREEMENT AND A FULL STATEMENT OF THE DESIGNATION,
RELATIVE RIGHTS, INTERESTS, PREFERENCES AND RESTRICTIONS OF THE STOCK UNDERLYING
THE DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT AND OF EACH CLASS OR SERIES OF
STOCK THAT THE COMPANY IS AUTHORIZED TO ISSUE WILL BE FURNISHED BY THE COMPANY,
WITHOUT CHARGE, TO EACH HOLDER OF A RECEIPT UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Dated:
FLEET NATIONAL BANK
Depositary
By
-------------------------
Authorized Signature
A-5
____________________
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - __________Custodian__________
(Cust) (Minor)
under Uniform Gift to Minors
Act______________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ______________________________________hereby sell,
assign and transfer unto
________________________________________________________________________________
Please Print or Type Name and Address Including Zip Code of Assignee
________________________________________________________________________________
Insert Social Security or Other
Identifying Number of Assignee
_______________________________________
| |
|______________________________________|
______________________________________________________________________Depositary
Shares represented by the written Receipt, and do hereby irrevocably constitute
and appoint
________________________________________________________________________Attorney
to transfer the said Receipts on the books of the within-named Dispositary with
full power of substitution in the premises.
Dated:______________________________ Signature_____________________________
NOTE: The signature of this
assignment must correspond
with the name(s) as written
upon the face of the Receipt
in every particular, without
alteration or enlargement, or
any change whatsoever.
A-6
