FIRST UNION CORPORATION
[FIRST UNION NATIONAL BANK OF NORTH CAROLINA],
AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED
HEREIN
-------------------
Deposit Agreement
-------------------
Dated as of ______ __, ____
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TABLE OF CONTENTS
Page
PARTIES.......................................................................1
RECITALS......................................................................1
ARTICLE I
DEFINITIONS
"Amendment"...................................................................2
"Company".....................................................................2
"Deposit Agreement"...........................................................2
"Depositary"..................................................................2
"Depositary Shares"...........................................................2
"Depositary's Agent"..........................................................2
"Depositary's Office".........................................................2
"Receipt".....................................................................2
"record holder"...............................................................3
"Registrar"...................................................................3
"Stock" .....................................................................3
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. [BOOK-ENTRY FORM;] FORM AND TRANSFER OF
RECEIPTS.............................................................3
SECTION 2.02. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF..........................................8
SECTION 2.03. REDEMPTION OF STOCK...........................................10
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS..........................13
SECTION 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS;
SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK.......................14
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND EXCHANGE OF RECEIPTS........................17
SECTION 2.07. LOST RECEIPTS, ETC............................................18
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS............................................................18
SECTION 2.__. STOCK PURCHASE PLANS..........................................20
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Page
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER
INFORMATION.........................................................21
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
21
SECTION 3.03. WARRANTY AS TO STOCK..........................................22
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS.................23
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH.................................23
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES.
25
SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD
DATE FOR HOLDERS OF RECEIPTS........................................27
SECTION 4.05. VOTING RIGHTS.................................................28
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC...........................29
SECTION 4.07. INSPECTION OF REPORTS.........................................31
SECTION 4.08. LIST OF RECEIPT HOLDERS.......................................31
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..................................31
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE
COMPANY.............................................................33
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY...............................34
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY:
APPOINTMENT OF SUCCESSOR DEPOSITARY.................................36
SECTION 5.05. CORPORATE NOTICES AND REPORTS.................................37
SECTION 5.06. INDEMNIFICATION BY THE COMPANY................................38
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Page
SECTION 5.07. CHARGES AND EXPENSES..........................................39
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT.....................................................40
SECTION 6.02. TERMINATION...................................................40
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS.................................................42
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES..................................43
SECTION 7.03. INVALIDITY OF PROVISIONS......................................43
SECTION 7.04. NOTICES.......................................................43
SECTION 7.05. DEPOSITARY'S AGENTS...........................................45
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES...............................45
SECTION 7.07. GOVERNING LAW.................................................45
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT...............................45
SECTION 7.09. HEADINGS......................................................46
TESTIMONIUM..................................................................46
SIGNATURES...................................................................46
EXHIBIT A: Depositary Receipt
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DEPOSIT AGREEMENT
dated as of ______ __, ____
among
FIRST UNION CORPORATION
a North Carolina corporation,
[FIRST UNION NATIONAL BANK OF NORTH CAROLINA]
a national banking association, as 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 Series __ [__%] [Class A]
Preferred Stock, no-par value, of FIRST UNION CORPORATION with the Depositary
(as hereinafter defined) for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of Receipts (as hereinafter defined) by the
Depositary evidencing Depositary Shares in respect of the Stock (as hereinafter
defined) so deposited;
NOW, THEREFORE, in consideration of the premises contained
herein and such other good and valuable consideration, receipt of which is
hereby acknowledged, 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:
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"Amendment" shall mean the articles of amendment to the
Articles of Incorporation, as amended, of the Company filed with the Secretary
of State of the State of North Carolina establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean First Union Corporation, a North Carolina
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean First Union National Bank of North
Carolina, a national banking association, and any successor Depositary
hereunder.
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-________ (1/__th) interest in a share of Stock and which
shall be evidenced by Receipts.
"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 business shall be
administered.
"Receipt" shall mean one of the depositary receipts, whether
in definitive or temporary form, issued hereunder by the Depositary, each
representing any number of whole Depositary Shares. [If Receipts are to be
issued in Book- Entry Form: If the context so requires, the term "Receipt"
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shall be deemed to include the DTC Receipt (as defined in Section 2.01 hereof).]
"record holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Registrar" shall mean any bank or trust company which shall
be appointed by the Depositary to register ownership and transfers of Receipts
as herein provided and which may include the Depositary.
"Securities Act" shall mean the Securities Act of
1933, as amended.
"Stock" shall mean shares of the Company's Series __ [___%]
[Class A] Preferred Stock, no-par value.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
[Use bracketed portions only if Receipts are to be issued in
Book-Entry Form:] SECTION 2.01. [BOOK-ENTRY FORM;] FORM AND TRANSFER OF
RECEIPTS. [[All] [A portion] of the Receipts shall initially be represented by
one or more global receipts (collectively, the "DTC Receipt") deposited with The
Depository Trust Company ("DTC") and registered in the name of [Cede & Co.], a
nominee of DTC. The Depositary, or such other entity as is agreed to by DTC, may
hold the DTC Receipt as custodian for DTC. So long as the Receipts are eligible
for
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book-entry settlement with DTC, except as provided for in Section 2.09 hereof,
no person acquiring Depositary Shares traded on any securities exchange with
book-entry settlement through DTC shall receive or be entitled to receive
physical delivery of the Receipts evidencing such Depositary Shares. Ownership
of beneficial interests in the DTC Receipt shall be shown on, and the transfer
of such ownership shall be effected through, records maintained by (i) DTC or
its nominee for such DTC Receipt, or (ii) institutions that have accounts with
DTC.]
[If DTC subsequently ceases to make its book-entry settlement
system available for the Receipts, the Company may instruct the Depositary
regarding making other arrangements for book-entry settlement. In the event that
the Receipts are not eligible for, or it is no longer necessary to have the
Receipts available in, book-entry form, the Depositary shall provide written
instructions to DTC to deliver to the Depositary for cancellation the DTC
Receipt, and the Company shall instruct the Depositary to deliver to the
beneficial owners of the Depositary Shares previously evidenced by the DTC
Receipt definitive receipts in physical form evidencing such Depositary Shares.
Such definitive Receipts shall be in the form annexed hereto as Exhibit A with
appropriate insertions, modifications and omissions, as hereafter provided.]
The beneficial owners of Depositary Shares shall [, except as
stated above with respect to Depositary Shares in
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book-entry form represented by the DTC Receipt,] be entitled to receive Receipts
in physical, certificated form as herein provided.
[The Receipts may be typewritten in the case of the DTC
Receipts and otherwise shall, upon notice by the Company to the Depositary, be
definitive Receipts.] Definitive Receipts shall be engraved or printed or
lithographed on steel-engraved borders and shall be substantially in the form
annexed hereto as Exhibit A, with appropriate insertions, modifications and
omissions, as hereinafter provided. [If Receipts are to be issued in Book-Entry
Form: The DTC Receipt shall bear such legend or legends as may be required by
DTC in order for it to accept the Depositary Shares for its book-entry
settlement system.] Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company [If shares of Stock may be
deposited by holders thereof: or any holder of Stock, as the case may be,]
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which shall be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the
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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 registered in the name (and only the
name) of the holder of the temporary Receipt. Such exchange shall be made at the
Company's expense and without any charge therefor to the holder. 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.
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
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record on its books each Receipt so signed and delivered as hereinafter
provided. Receipts bearing the manual or facsimile signatures of individuals who
were at any time proper officers of the Depositary or the Registrar, as the case
may be, shall constitute adequate signatures hereunder, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
delivery of such Receipts or did not hold such offices on the date of delivery
of such Receipts.
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 and approved by
the Company or required to comply with any applicable law or regulation 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.
[Subject to any limitations set forth in a Receipt or in this
Deposit Agreement,] 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 of such Receipt with the same effect as if
such Receipt were a negotiable instrument;
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PROVIDED, HOWEVER, that until transfer of a Receipt shall be registered on the
books of the Registrar, on behalf of the Depositary, as provided in Section
2.04, the Depositary may, notwithstanding any notice to the contrary, treat the
record holder as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions with
respect to the Stock [, the exchange of Depositary Shares for Stock, the right
to exchange Receipts pursuant to Section 2.09] or to any notice provided for in
this Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
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 [If shares of Stock may be deposited by holders thereof:
or any holder of Stock] may from time to time deposit shares of Stock with the
Depositary under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates representing the Stock to be deposited. Such
certificate or certificates representing the Stock shall be 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
- 8 -
together with a written order of the Company [If shares of Stock may be
deposited by holders thereof: or such holder, as the case may be,] directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons named in such order, a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing such deposited Stock.
All Stock deposited by the Company [If shares of Stock may be
deposited by holders thereof: or any holder of Stock, as the case may be,] with
the Depositary 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 representing Stock deposited, with the Depositary by the Company
[If shares of Stock may be deposited by holders thereof: or any holder of Stock,
as the case may be,] in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock so deposited on the books of the Company in the name of the
Depositary, the Depositary shall execute and deliver, to the person or persons
named in the written order delivered to the Depositary, a Receipt or Receipts,
evidencing in the aggregate the number of Depositary Shares relating to the
Stock so deposited. Such Receipt or Receipts shall be registered by the
Depositary or the Registrar in such name or names as may be requested by the
person or persons named in the written order. The Depositary
- 9 -
shall execute and deliver such Receipts at the Depositary's Office or such other
offices, if any, as such person may designate. Delivery at other offices shall
be at the risk and expense of the person requesting such delivery. [If Receipts
are to be issued in Book-Entry Form: The DTC Receipt shall provide that it shall
evidence the aggregate amount of Depositary Shares from time to time indicated
in the records of the Depositary and that the aggregate amount of Depositary
Shares evidenced thereby may from time to time be increased or decreased by
making adjustments on such records of the Depositary.]
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited with the Depositary
hereunder not more than ______ shares of Stock.
SECTION 2.03. REDEMPTION OF STOCK. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of the
Amendment, it shall (unless otherwise agreed in writing with the Depositary)
mail notice to the Depositary of such redemption, by first class mail, postage
prepaid, not less than 40 nor more than 70 days prior to the date fixed for the
redemption of Stock in accordance with the provisions of the Amendment. On the
date of such redemption, provided that the Company shall then have paid in full
to the Depositary the redemption price required pursuant
- 10 -
to the Amendment relating to 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 simultaneous redemption of the number of
Depositary Shares relating to the Stock to be redeemed, by first-class mail,
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 on the record date fixed pursuant to Section 4.04 hereof, at
the addresses of such holders as they appear on the records of the Depositary;
PROVIDED, HOWEVER, that neither failure to mail any such notice to one or more
such holders nor any defect in any notice or in the mailing thereof to one or
more such holders shall affect the validity of the proceedings for redemption of
any Depositary Shares as to other holders. Each such notice of redemption 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 and the method by which the Depositary Shares will be chosen for
redemption; (iii) the redemption price (including cumulative dividends to the
Redemption Date); (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; (v) that
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dividends in respect of the Stock to be redeemed, which are represented by the
Depositary Shares to be redeemed, will cease to accrue at the close of business
on such Redemption Date and (vi) if a date other than the Redemption Date, the
date from and after which the Stock and Depositary Shares shall no longer be
deemed to be outstanding.. 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 Company.
Notice having been mailed by the Depositary as aforesaid, from
and after (a) 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), or (b) such earlier date (if
applicable) upon which the Company deposits the Redemption Price with the paying
agent for the holders of the Stock (regardless of whether such shares are
actually surrendered for cancellation), all dividends in respect of the shares
of Stock so called for redemption shall cease to accrue, 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 called for
redemption (properly endorsed or assigned for transfer, if the Depositary
- 12 -
shall so require), such Depositary Shares shall be redeemed by the Depositary at
a redemption price per Depositary Share equal to 1/__th 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 accrued
on the shares of Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the payment of the
redemption price, a new Receipt evidencing such number of Depositary Shares as
were evidenced by such prior Receipt and not called for redemption; PROVIDED,
HOWEVER, that such replacement Receipt shall be issued only in denominations of
whole Depositary Shares and cash will be payable in respect of fractional
interests.
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to
the terms and conditions of this Deposit Agreement, the Registrar, on behalf of
the Depositary, shall register on its books transfers of Receipts from time to
time upon notice to the Registrar by the Depositary of the surrender of a
Receipt for transfer by the holder in person or by duly authorized attorney,
which Receipt in each case must be properly endorsed or accompanied by a
properly executed
- 13 -
instrument of transfer. Upon surrender of a properly endorsed Receipt or Receipt
accompanied by an instrument of transfer, 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 transferee named in the
endorsement or instrument of transfer.
SECTION 2.05. 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, the Depositary shall execute and deliver a new Receipt or Receipts to
the holder thereof or to such holder's order in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered. The Depositary shall give prompt notice of such action and
the certificate numbers to the Registrar for the purpose of recording such
split-up or consolidation.
Unless the related Depositary Shares have previously been
called for redemption, any holder of a Receipt or Receipts representing any
number of whole shares of Stock (or such holder's duly authorized attorney) may
withdraw the number of whole shares of Stock underlying such Depositary Shares
and all money and other property, if any, represented
- 14 -
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. [If
Receipts are to be issued in Book-Entry Form: If such holder's Depositary Shares
are being held by DTC or its nominee pursuant to Section 2.01, such holder shall
request, in accordance with Section 2.09, withdrawal from the book-entry system
of the number of Depositary Shares specified in the preceding sentence.]
Thereafter, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, the number of whole shares of Stock and all money 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 the
Receipt or Receipts delivered by the holder to the Depositary in connection with
such withdrawal shall evidence in the aggregate 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 (subject to
Sections 2.04 and 3.02) upon his order, a new Receipt evidencing such excess
number of Depositary Shares. Delivery of the Stock and the money and other
property being withdrawn
- 15 -
may be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
Stock delivered pursuant to the preceding paragraph may be
endorsed with or have incorporated in the text thereof such legend 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 may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular shares of Stock are subject.
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 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 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
- 16 -
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 the rules and regulations of any governmental body,
any stock exchange or any applicable self regulatory body, including without
limitation, the National Association of Securities Dealers, Inc. (the "NASD") or
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The [If shares of Stock may be deposited by holders thereof:
deposit of Stock may be refused, the] delivery of Receipts against Stock
deposited with the Depositary 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
- 17 -
any period when the register of stockholders of the Company is closed or (ii) if
any such action is deemed necessary 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, governmental body or commission, stock
exchange or the NASD or under any provision of this Deposit Agreement.
SECTION 2.07. LOST RECEIPTS, ETC. If any mutilated Receipt is
surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be destroyed,
lost or stolen, then, in the absence of notice to the Depositary that such
Receipt has been acquired by a bona fide purchaser, the Depositary shall execute
and deliver a Receipt to the holder thereof of like form and tenor in exchange
and substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by the holder thereof with the Depositary of evidence satisfactory to the
Depositary and the Company of such destruction or loss or theft of such Receipt,
of the authenticity thereof and of such holder's ownership thereof and (ii) the
holder's furnishing the Depositary with indemnification satisfactory to such
Depositary and the Company.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF
SURRENDERED RECEIPTS. All Receipts surrendered to the
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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. [If Receipts are to be issued in Book- Entry
Form: Any Receipt evidenced in book-entry form shall be deemed canceled when the
Depositary has caused the amount of Depositary Shares evidenced by the DTC
Receipt to be reduced in proportion to the number of Depositary Shares evidenced
by the surrendered Receipt.]
[If Receipts are to be issued in Book-Entry Form: SECTION
2.09. INTERCHANGEABILITY OF BOOK-ENTRY RECEIPTS AND RECEIPTS IN PHYSICAL,
CERTIFICATED FORM. Subject to the terms and conditions of this Deposit
Agreement, upon receipt by the Depositary of written instructions from a DTC
participant on behalf of any person having a beneficial interest in Depositary
Shares evidenced by the DTC Receipt for the purpose of directing the Depositary
to execute and deliver a Receipt in physical, certificated form evidencing such
Depositary Shares, the Depositary shall follow the procedures set forth in the
FAST Agreement for the purpose of reducing the number of Depositary Shares
evidenced by the DTC Receipt and, following such reduction, shall execute and
deliver to or upon the order of the person or persons named in such order a
Receipt or Receipts registered in the name or names requested by such person and
evidencing in the aggregate the number of Depositary Shares equal to the
reduction in the number
- 19 -
evidenced by the DTC Receipt. The Depositary may require in such written
instructions any certification or representations as it shall deem necessary to
comply with applicable law.
Subject to the terms and conditions of this Deposit Agreement,
upon receipt by the Depositary of a Receipt or Receipts in physical,
certificated form, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Depositary, including any required
certifications, and together with written instructions directing the Depositary
to adjust its records to reflect an increase in the aggregate amount of
Depositary Shares evidenced by the DTC Receipt (including, without limitation,
information regarding the DTC participant account to be credited with such
increase), and upon payment of the fees and expenses of the Depositary, the
Depositary shall cancel such Receipt or Receipts in physical, certificated form
and shall follow the procedures set forth in the FAST Agreement for the purpose
of reflecting such increase in the number of Depositary Shares evidenced by the
DTC Receipt.]
SECTION 2.__. STOCK PURCHASE PLANS. The Depositary shall take
such action as shall be necessary or appropriate to permit the record holders of
the Depositary Shares to participate in any dividend reinvestment or other stock
purchase plan sponsored by the Company that permits the participation by such
holders on such terms and conditions as the Company may determine.
- 20 -
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 obtain such
guaranties of signature, to execute such certificates and to make such customary
representations and warranties consistent with the terms of the Stock as the
Depositary or the Company may deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.02. 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, or provide evidence
satisfactory to the Depositary that such charges and expenses have been paid.
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,
- 21 -
interest payments or other distributions may be withheld or all or any part of
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 to the Depositary 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.
SECTION 3.04. WARRANTY AS TO RECEIPTS. The Depositary hereby
represents and warrants that the Receipts, when issued, will be legal, valid and
binding obligations of the Depositary, enforceable against the Depositary in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium and other laws affecting
creditors' rights generally and by general equity principles. Such
representation and warranty shall survive the deposit of the Stock and the
issuance of the Receipts.
- 22 -
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary
shall receive any cash dividend or other cash distribution with respect to the
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 the pro
rata portion, as nearly as practicable, of such dividend or distribution
applicable to the number 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 any monies from any cash
dividend or other cash distribution in respect of the Stock on account of taxes,
the distribution 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 succeeding
distribution to record holders of Receipts.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH.
Whenever the Depositary shall receive any property (including
securities) for distribution in a form other than cash with
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respect to the 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
the pro rata portion, as nearly as practicable, of such property (including
securities) received by it applicable to the number 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 of the property thus
received, or any part thereof. 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 in accordance with the
provisions of Section 4.01 for a distribution received in cash. The Depositary
shall have the right, prior to making any distribution of such securities, to
require the Company to provide an opinion of counsel stating that such
securities have been registered under the Securities Act or do not need to be so
registered.
- 24 -
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, pro rata in proportion to the Stock represented
by such Receipt, 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
- 25 -
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 sales 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. The Depositary
shall have the right, prior to making any distribution of such rights,
preferences or privileges, to require the Company to provide an opinion of
counsel stating that such rights, preferences or privileges have been registered
under the Securities Act or do not need to be so registered.
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 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
- 26 -
any security unless and until such registration statement shall have become
effective, or unless the offering and sale of such securities to holders are
exempt from registration under the Securities Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its 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 OF RECORD DATE
FOR HOLDERS OF RECEIPTS. (i) Whenever any cash dividend or other cash
distribution shall become payable or any distribution of property (including
securities) other than cash shall be made, (ii) if rights, preferences or
privileges shall at any time be offered with respect to Stock, (iii) whenever
the Depositary shall receive notice of (a) any meeting at which holders of Stock
are entitled to vote or of which holders of Stock are entitled to notice, or (b)
any election on the part of the Company to redeem any shares of Stock, or (iv)
whenever the Depositary and the Company shall decide it is appropriate, the
Depositary shall, in each such
- 27 -
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 hereunder to receive a distribution in
respect of 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 should be entitled 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 that the holders may, subject to any applicable
restrictions, authorize the Depositary to exercise the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares (including
authority to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such authorization may be given.
The Depositary shall endeavor, insofar as practicable, to vote or cause to be
voted, in accordance with the authorization referred to above, the votes
relating to the shares of Stock (or portion thereof) underlying the Depositary
Shares evidenced by all Receipts as to which such authorization has
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been received. The Company hereby agrees to take all such action as it deems
necessary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of authorization 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 (or
portion thereof) 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 to
which the Company is a party or sale of all or substantially all of the
Company's assets, the Depositary may with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as to retain
as nearly as possible the percentage ownership interest in Stock of holders of
the Receipts immediately prior to such event, (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 it may deem necessary to
reflect the effects of such change in par or stated value, split-up, combination
or other
- 29 -
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 of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion of or in respect of the 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 surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited
securities.
Anything to the contrary herein or in the Receipt
notwithstanding, holders of Receipts shall have the right from and after the
effective date or any such change in par or stated value, split-up, combination
or other reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation, consolidation or sale, to the extent that
holders of Stock had the right, prior to or on the applicable effective date, to
convert, exchange or surrender shares of Stock into or for other stock,
securities, property or cash, 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 has been converted or for which such Stock might have
- 30 -
been exchanged or surrendered immediately prior to the effective date of 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
by the Company, the Depositary shall furnish to it a list, as of a specified
date, of the names and addresses of all persons in whose names Receipts are
registered on the books of the Depositary, and the amount of Stock represented
thereby.
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,
- 31 -
all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of any applicable stock exchange in which the
Receipts or the Depositary Shares may be listed. 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, the Depositary Shares or
the 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.
The Registrar shall maintain books at the Depositary's Office
for the registration and registration of transfer of Receipts or at such other
place as shall be approved by the Company and of which the holders of Receipts
shall have reasonable notice, which books at all reasonable times shall be open
for inspection by the record holders of Receipts; PROVIDED, that the exercise of
such right shall be governed by the provisions of Section 55-16-02 of the North
Carolina Business Corporation Act, as amended, or any
- 32 -
successor provision thereto, anything herein to the contrary notwithstanding.
The Depositary may cause the Registrar to close the books with
respect to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law or of any government,
governmental body or commission, stock exchange or any applicable
self-regulatory body, including, without limitation, the NASD.
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 Articles of Incorporation, as amended
(including the Amendment), or by reason of any act of God or war, 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
- 33 -
be done or performed; nor shall the Depositary, any Depositary's Agent, any
Registrar or the Company incur any liability or be subject to any obligation (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 the event of 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 to such party against all expense and liability be
furnished as often as required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party
- 34 -
hereto 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 or any holder of a Receipt. 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 party or parties specified in this Agreement.
The Depositary shall not be responsible for any failure to
carry out any authorization to vote any of the shares of Stock of for the manner
or effect of any such vote made, as long as such action or inaction is in good
faith and does not result from the gross negligence or willful misconduct of the
Depositary. The Depositary undertakes and shall cause any Registrar to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement using its reasonable best efforts and in good faith. The
parties hereto acknowledge that no implied covenants or obligations shall be
read into this Deposit Agreement against the Depositary or any Registrar or
against the Company with respect to the Depositary and any Registrar. The
Depositary will indemnify the Company against any liability which may arise out
of acts performed or omitted by the Depositary or any Depositary's Agent due to
its or their gross negligence or bad faith. The Depositary, any Depositary's
Agent, any Registrar and the Company may own and deal in any class of
- 35 -
securities of the Company and its affiliates and in Receipts subject to the
provisions of applicable law. 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 so to do 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 agreeing to become a party to this Agreement,
- 36 -
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 monies 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 or other entity into or with which the
Depositary may be merged, consolidated or converted, or to which the Depositary
may sell all or substantially all its assets, 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 deliver to the Depositary and the Depositary will, promptly
after receipt thereof, transmit to the record holders of Receipts, in each case
at the address
- 37 -
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, as amended
(including the Amendment), to be furnished by the Company to holders of Stock.
Such transmission will be at the Company's expense and the Company will provide
the Depositary with such number of copies of such documents as the Depositary
may reasonably request.
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 (i) acts performed or omitted in connection with this Agreement and
the Receipts (a) by the Depositary, any Registrar or any of their respective
agents (including any Depositary's Agent), except for any liability arising out
of gross negligence or willful misconduct 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. The obligations of the Company set forth in this Section 5.06
shall survive any succession of any Depositary, Registrar or Depositary's Agent.
- 38 -
SECTION 5.07. CHARGES AND EXPENSES. 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. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
The Depositary may refuse to effect any transfer of a Receipt or any withdrawal
of Stock evidenced thereby until all such taxes and charges with respect to such
Receipt or Stock are paid by the holder thereof. 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,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be payable by the Company only after prior
consultation and agreement between the Depositary and the Company and consent by
the Company to the incurrence of such expenses, which consent shall not be
unreasonably withheld. The Depositary shall present any statement for charges
and expenses to the Company promptly, unless the Company shall agree otherwise.
- 39 -
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. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.05 and 2.06 hereof, of any owner of any Depositary Shares to
surrender any Receipt evidencing such Depositary Shares to the Depositary with
instructions to deliver to the holder the Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law or the rules and regulations of any governmental
body, agency or commission, the NASD or any applicable stock exchange.
SECTION 6.02. TERMINATION. This Agreement may be terminated by
the Company or the Depositary only if (i) all
- 40 -
outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03,
(ii) all the Stock has been withdrawn pursuant to Section 2.05, 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.
Whenever the Deposit Agreement has been terminated pursuant to
(iii) above, the Depositary will mail notice of such termination to the record
holders of all Depositary Shares then outstanding at least 30 days prior to the
date fixed in that notice for termination of the Deposit Agreement. If any
Depositary Shares remain outstanding after the date of termination, the
Depositary thereafter will discontinue the transfer of Depositary Shares, will
suspend the distribution of dividends to the owners thereof, and will not give
any further notices (other than notice of such termination) or perform any
further acts under this Deposit Agreement, except that the Depositary will
continue (i) to collect dividends on the Stock and any other distributions with
respect thereto, (ii) to deliver or cause to be delivered shares of Stock,
together with such dividends and distributions, or principal and interest, and
the net proceeds of any sales of rights, preferences, privileges or other
property (other than real property) in exchange for Depositary Shares
surrendered. At any time after the expiration of three years from the date of
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termination, the Depositary may sell the Stock then held by it at a public or
private sale, at such place or places and upon such terms as it deems proper and
may thereafter hold the net proceeds of such sale, without liability for
interest, for the pro rata benefit of the owners of the Depositary Shares which
have not theretofore been surrendered. Subject to applicable escheat laws, any
monies set aside by the Company in respect of any payment with respect to the
Stock represented by the Depositary Shares, or dividends thereon, and unclaimed
at the end of three years form the date upon which such payment is due and
payable shall revert to the general funds of the Company, after which reversion
the holders of such Depositary Shares shall look only to the general funds of
the Company for payment thereof.
Upon the termination of this Deposit Agreement, the parties
hereto shall be discharged from all obligations under this Deposit Agreement
except for their respective obligations under Sections 5.03, 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
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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 modified 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,
telecopy or telex confirmed by letter, addressed to the Company at βββ βββββ
βββββ ββββββ, βββββββββ, βββββ ββββββββ βββββ, telephone: (___) ___-____,
telecopy: (___) ___-____, Attention: ________________, or at any other address
and to the attention of any other person 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
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be deemed to have been duly given if personally delivered or sent by mail or by
telegram, telecopy or telex confirmed by letter, addressed to the Depositary at
the Depositary's Office, at βββ βββββ βββββ ββββββ, βββββββββ, βββββ ββββββββ
βββββ, telephone (___) ___-____, telecopy (___) ___-____, Attention:
________________, or at any other address and to the attention of any other
person 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,
telecopy 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, telecopy 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 telecopy
message received by it from the other or from any holder of a Receipt,
notwithstanding that
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such telegram or telecopy 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 any Depositary's Agent 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 promptly notify the Company of any
such action.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. By acceptance
of delivery of the Receipts, any holder of such Receipt from time to time shall
be deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Agreement.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
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
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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.
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.
FIRST UNION CORPORATION
By: ___________________________
Authorized Officer
[FIRST UNION NATIONAL
BANK OF NORTH CAROLINA],
as Depositary
By: __________________________
Authorized Officer
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EXHIBIT A
DEPOSIT AGREEMENT
FORM OF RECEIPT
TEMPORARY RECEIPT EXCHANGEABLE FOR CERTIFICATE FOR
ENGRAVED RECEIPT WHEN READY FOR DELIVERY _________________
DEPOSITARY SHARES
TRANSFERABLE CUSIP _______________
DEPOSITARY RECEIPT
This Certificate is SEE REVERSE FOR
transferable in CERTAIN DEFINITIONS
----------, ----------
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH DEPOSITARY SHARE REPRESENTING A _________ INTEREST
IN ONE SHARE OF SERIES __ [___%] [CLASS A] PREFERRED STOCK
FIRST UNION CORPORATION
A North Carolina Corporation
[FIRST UNION NATIONAL BANK OF NORTH CAROLINA], as Depositary (the "Depositary"),
hereby certifies that
is the registered owner of ____________________ DEPOSITARY SHARES ("Depositary
Shares"), each Depositary Share representing a ______ interest in one share of
Series __ [___%] [Class A] Preferred Stock], no par value, (the "Stock"), of
First Union Corporation, a North Carolina 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 be 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: ____________ __, ____
[FIRST UNION NATIONAL BANK OF NORTH
CAROLINA], Depositary
By: _______________________________
Authorized Officer
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[[REGISTRAR], Registrar
By: _______________________________
Authorized Officer]
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FIRST UNION CORPORATION
FIRST UNION CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF A RECEIPT
WHO SO REQUESTS A COPY OR SUMMARY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY
OF THE PORTIONS OF THE ARTICLES OF INCORPORATION ESTABLISHING THE DESIGNATIONS,
RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS APPLICABLE TO SHARES OF EACH CLASS
AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS DETERMINED FOR EACH
SERIES (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE VARIATIONS FOR
FUTURE SERIES) WHICH THE CORPORATION IS AUTHORIZED TO ISSUE, INCLUDING THE
SERIES __ [___%] [CLASS A] PREFERRED STOCK. ANY SUCH REQUEST SHOULD BE ADDRESSED
TO FIRST UNION CORPORATION, βββ βββββ βββββ ββββββ, βββββββββ, βββββ ββββββββ
βββββ, ATTENTION: ________________________.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Depositary Receipt, shall be construed as though they were
written out in full according to applicable laws or 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 Gifts to
Minors Act _____________
(State)
UNIF GIFT MIN ACT - ______ Custodian (until age ____)
(Cust)
______ under Uniform Transfers
(Minor)
to Minors Act ______________
(State)
Additional abbreviations may also be
used though not in the above list.
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