1
EXHIBIT 4(c)
ASSIGNMENT AND ASSUMPTION OF
AND AMENDMENT #1 TO THE
DEPOSIT AGREEMENT
This Assignment and Assumption of and Amendment #1 to the
Deposit Agreement (this "Agreement") is made as of this 31st day
of January, 1996, by and among Boatmen's Bancshares, Inc., a
corporation duly organized and existing under the laws of the
State of Missouri ("Boatmen's"), Acquisition Sub, Inc., a
corporation duly organized and existing under the laws of the
State of Kansas and wholly-owned subsidiary of Boatmen's
("Acquisition Sub"), Boatmen's Trust Company, a corporation duly
organized and existing under the laws of the State of Missouri
and wholly-owned subsidiary of Boatmen's (the "New Depositary")
and BANK IV, National Association, a national banking association
and wholly-owned subsidiary of Acquisition Sub (the "Old
Depositary").
W I T N E S S E T H:
WHEREAS, Fourth Financial Corporation, a corporation
formerly duly organized and existing under the laws of the State
of Kansas ("Fourth"), the Old Depositary and the holders of
Receipts (as defined in the Deposit Agreement) were the original
parties to that certain Deposit Agreement, dated February 24,
1992 (the "Deposit Agreement"), a copy of which is attached
hereto as Exhibit A, which provides for the deposit with the Old
Depositary of shares of Class A Cumulative Convertible Preferred
Stock, $100 par value, of Fourth and for the issuance of Receipts
and under which the Old Depositary acts as Registrar, Transfer
Agent and Depositary (as such terms are defined in the Deposit
Agreement) with respect to said Receipts, all subject to the
terms and conditions set forth in the Deposit Agreement; and
WHEREAS, effective as of the date hereof, Fourth merged (the
"Merger") with and into Acquisition Sub pursuant to that certain
Agreement and Plan of Merger, dated August 25, 1995, by and among
Boatmen's, Acquisition Sub and Fourth (the "Merger Agreement"),
under which Merger Acquisition Sub by operation of law assumed
the Deposit Agreement and pursuant to which Merger Agreement the
Class A Cumulative Convertible Preferred Stock, $100 par value,
of Fourth was converted into the right to a like number of shares
of Cumulative Convertible Preferred Stock, Series A, $100 stated
value, of Boatmen's; and
WHEREAS, the parties hereto desire that Acquisition Sub
assign and Boatmen's assume the rights, privileges, duties and
obligations that Acquisition Sub acquired from Fourth under the
Merger by operation of law which arise or accrue after the date
of this Agreement and which are set forth in the Deposit
Agreement, as amended herein; and
WHEREAS, the Old Depositary desires to resign as Registrar,
Transfer Agent and Depositary with respect to said Receipts and
Boatmen's desires to appoint the New Depositary as Registrar,
Transfer Agent and Depositary with respect to said Receipts, all
subject to the terms and conditions set forth in the Deposit
Agreement; and
WHEREAS, the parties hereto desire to amend the Deposit
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises, the
parties hereto hereby agree as follows:
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ASSIGNMENT, ASSUMPTION, RESIGNATION AND APPOINTMENT
SECTION 1.01. ASSIGNMENT. Acquisition Sub hereby assigns
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to Boatmen's all of the rights, privileges, duties and
obligations that Acquisition Sub acquired from Fourth under the
Merger by operation of law which arise or accrue after the date
of this Agreement and which are set forth in the Deposit
Agreement, as amended herein.
SECTION 1.02. ASSUMPTION. Boatmen's hereby assumes from
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Acquisition Sub all of the rights, privileges, duties and
obligations that Acquisition Sub acquired from Fourth under the
Merger by operation of law which arise or accrue after the date
of this Agreement and which are set forth in the Deposit
Agreement, as amended herein.
SECTION 1.03. RESIGNATION. Pursuant to Section 5.04 of the
-----------
Deposit Agreement, the Old Depositary hereby resigns, effective
immediately, as Registrar, Transfer Agent and Depositary under
the Deposit Agreement.
SECTION 1.04. APPOINTMENT AND ACCEPTANCE. Pursuant to
--------------------------
Section 5.04 of the Deposit Agreement, (i) Boatmen's hereby
appoints the New Depositary, effective immediately, as Registrar,
Transfer Agent and Depositary under the Deposit Agreement, (ii)
the New Depositary hereby accepts such appointment, and (iii) the
Old Depositary hereby (a) transfers to the New Depositary all
rights and powers of the Old Depositary under the Deposit
Agreement, as amended herein, (b) delivers to the New Depositary
a list of the record holders of all outstanding Receipts, and (c)
assigns, transfers and delivers all of its right, title and
interest in the Deposited Stock (as defined in the Deposit
Agreement) and any moneys or property held by the Old Depositary
under the Depositary Agreement.
AMENDMENT #1
The Deposit Agreement is hereby amended as follows:
SECTION 2.01. AMENDED DEFINITIONS. Article I of the
-------------------
Deposit Agreement is hereby amended as follows:
a. The definition of "Common Stock" is hereby
amended to read as follows:
"The term "Common Stock" shall mean the
common stock, par value $1.00 per share, of
the Company or any security into which the
Common Stock may be converted."
b. The definition of "Company" is hereby amended
to read as follows:
"The term "Company" shall mean Boatmen's
Bancshares, Inc., incorporated under the laws
of the State of Missouri and its successors."
c. The definition of "Depositary" is hereby
amended to read as follows:
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3
"The term "Depositary" shall mean Boatmen's
Trust Company, incorporated under the laws of
the State of Missouri, and any successor in
its role as Depositary, Registrar and
Transfer Agent hereunder."
d. The definition of "Registrar" is hereby
amended to read as follows:
"The term "Registrar" shall mean Boatmen's
Trust Company, incorporated under the laws of
the State of Missouri, or any bank or trust
company which shall be appointed to register
ownership and transfers of Receipts as herein
provided."
e. The definition of "Registration Statement" is
hereby amended to read as follows:
"The term "Registration Statement" shall mean
the Registration Statement on Form S-4 of the
Company (Registration No. 33-64087), declared
effective on November 9, 1995 relating to,
among other things, the offering of the
Depositary Shares."
f. The definition of "Securities Division" is
hereby amended to read as follows:
"The term "Securities Division" shall mean
the principal office of the Depositary in St.
Louis, Missouri, at which at any particular
time its corporate trust business shall have
the responsibilities for the administration
of this Agreement and obligations hereunder."
g. The definition of "Stock" is hereby amended
to read as follows:
"The term "Stock" shall mean shares of the
Company's Cumulative Convertible Preferred
Stock, Series A, stated value $100 per
share."
h. The definition of "Transfer Agent" is hereby
amended to read as follows:
"The term "Transfer Agent" shall mean
Boatmen's Trust Company, incorporated under
the laws of the State of Missouri, or any
bank or trust company which shall be
appointed to transfer the Receipts as herein
provided."
SECTION 2.02. AMENDED NOTICE PROVISION. Article VII,
------------------------
Section 7.04, paragraph 1, of the Deposit Agreement is hereby
amended to read as follows:
"Any and all notices to be given to the
Company hereunder or under the Receipts shall
be in writing and shall be deemed to have
been duly given if personally delivered or
sent by mail or by telegram or telex
confirmed by letter, addressed to the Company
at One Boatmen's Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention
Corporate Secretary,
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or at any other place of which the Company has
notified the Depositary in writing."
SECTION 2.03. AMENDED FORM OF CERTIFICATE OF DESIGNATION.
------------------------------------------
The Company's Form of Certificate of Designation, attached to the
original Deposit Agreement as Exhibit A, is hereby replaced as
set forth in Exhibit B attached hereto.
SECTION 2.04. AMENDED FORM OF RECEIPTS. The Form of
------------------------
Receipts, attached to the original Deposit Agreement as Exhibit
B, is hereby replaced as set forth in Exhibit C attached hereto.
IN WITNESS WHEREOF, Boatmen's, Acquisition Sub, the New
Depositary and the Old Depositary have duly executed this
Agreement as of the day and year first set forth above.
BOATMEN'S BANCSHARES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice Chairman
ACQUISITION SUB, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
BOATMEN'S TRUST COMPANY
By: /s/ H. E. Bradford
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Name: H. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President
-------------------------
BANK IV, NATIONAL ASSOCIATION
By: /s/ K. ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: K. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Chairman
-------------------------
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EXHIBIT A
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ORIGINAL
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of February 24, 1992, among
Fourth Financial Corporation, a corporation duly organized and
existing under the laws of the State of Kansas (the "Company"),
BANK IV Kansas, National Association, a national banking
association, as depositary (the "Depositary"), and the holders
from time to time of Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to provide for the
deposit with the Depositary of shares of Class A Cumulative
Convertible Preferred Stock, $100 par value, of the Company, and
for the issuance of receipts evidencing fractional interests in
such shares; and
WHEREAS, the parties further desire that the Depositary act
as registrar, transfer agent and depositary with respect to the
said receipts.
NOW, THEREFORE, in consideration of the premises, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this
Deposit Agreement and the Receipts:
The term "Certificate of Designation" shall mean the
Certificate of Designation adopted by the Company's Board of
Directors or a duly authorized committee thereof setting forth
the number, terms, powers, designations, rights, preferences,
qualifications, restrictions and limitations of the Stock,
attached hereto as Exhibit A.
The term "Articles of Incorporation" shall mean the Restated
Articles of Incorporation, as amended from time to time, of the
Company.
The term "Common Stock" shall mean the common stock, value
$5.00 per share, of the Company or any security into which the
Common Stock may be converted.
The term "Company" shall mean Fourth Financial Corporation,
incorporated under the laws of the State of Kansas and its
successors.
The term "Deposit Agreement" shall mean this Agreement, as
amended or supplemented from time to time.
Ex. A-1
6
The term "Depositary" shall mean BANK IV Kansas, National
Association, a national banking association, and any successor in
its role as Depositary, Registrar and Transfer Agent hereunder.
The term "Depositary Shares" shall mean the Depositary
Shares evidenced by the Receipts. Each Depositary Share shall,
as provided herein, represent a 1/16th interest in a share of
Stock. Subject to the terms of this Deposit Agreement, each
owner of a Depositary Share is entitled, proportionate to the
fractional interest in a share of Deposited Stock underlying such
Depositary Share, to all the rights and preferences of the Stock
represented thereby, including dividend, voting, conversion,
redemption and liquidation rights.
The term "Depositary's Agent" shall mean an agent appointed
by the Depositary as provided, and for the purpose specified, in
Section 7.05.
The term "Deposited Stock" shall mean the shares of Stock
which are at the time of determination held by the Depositary
hereunder.
The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as from time to time amended.
The term "Receipt" shall mean one or more of the depositary
receipts issued hereunder, whether in definitive or temporary
form, substantially in the form of Exhibit B hereto.
The term "record date" shall mean the date fixed pursuant to
Section 4.04.
The term "record holder," as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books of
the Depositary maintained for such purpose.
The term "Redemption Date" shall have the meaning set forth
in Section 2.03 hereof.
The term "Registrar" shall mean BANK IV Kansas, National
Association, or any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as
herein provided.
The term "Registration Statement" shall mean the
Registration Statement on Form S-3 of the Company (Registration
No. 33-45414), as amended by Amendment No. 1, declared effective
on February 13, 1992 relating to the offering of the Depositary
Shares.
The term "Securities Act" shall mean the Securities Act of
1933, as from time to time amended.
The term "Securities Division" shall mean the principal
office of the Depositary in Wichita, Kansas, at which at any
particular time its corporate trust business shall have
responsibilities for the administration of this Agreement and
obligations hereunder.
The term "Stock" shall mean shares of the Company's Class A
Cumulative Convertible Preferred Stock, par value $100 per share.
The term "Transfer Agent" shall mean BANK IV Kansas,
National Association, or any bank or trust company which shall be
appointed to transfer the Receipts as herein provided.
Ex. A-2
7
ARTICLE II
DEPOSIT OF STOCK; FORM, EXECUTION,
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. DEPOSIT OF STOCK: EXECUTION AND DELIVERY OF
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RECEIPTS IN RESPECT THEREOF. Concurrently with the execution and
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delivery of this Deposit Agreement, the Company is delivering to
the Depositary a certificate or certificates, registered in the
name of the Depositary and evidencing 250,000 shares of the
Stock, together with (i) all such certifications as may be
required by the Depositary in accordance with the provisions of
this Deposit Agreement, and (ii) a written order of the Company
directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a
Receipt or Receipts for the 4,000,000 Depositary Shares
representing such Deposited Stock. The certificate or
certificates evidencing the Deposited Stock shall be held by the
Depositary, at its Securities Division or at such other place or
places as the Depositary shall determine. The Company hereby
authorizes the Depositary, in its capacity as Transfer Agent and
Registrar for the Stock, to reflect changes in the number of
shares (including any fractional shares) of Deposited Stock from
time to time held by the Depositary by notation, book entry or
other appropriate method and the Depositary, in its capacity as
aforesaid, agrees to furnish the Company with regular reports as
to the number of shares of Deposited Stock from time to time held
under this Deposit Agreement.
Subject to the terms and conditions of this Deposit
Agreement, Stock may also be deposited hereunder in connection
with the delivery of Receipts to represent distributions under
Section 4.02 and upon exercise of the rights to subscribe
referred to in Section 4.03.
The Depositary hereby acknowledges delivery of the Deposited
Stock together with the other documents required as above
specified and, concurrently with such delivery, has caused to be
delivered, to or upon the order of the Company, one or more
Receipts evidencing the 4,000,000 Depositary Shares which
represent all of the fractional interests in the Deposited Stock,
in such denominations and registered in such name or names as are
specified in such Company order.
SECTION 2.02. FORM AND TRANSFERABILITY OF RECEIPTS. The
------------------------------------
definitive Receipts shall be substantially in the form set forth
in Exhibit B annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided
and shall be engraved or otherwise prepared so as to comply with
applicable rules of the National Association of Securities
Dealers Automated Quotation National Market System ("NASDAQ/NMS")
or any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be included for quotation or listed.
Pending the preparation of definitive Receipts, the Depositary,
upon the written order of the Company delivered in compliance
with Section 2.01, shall issue, execute and deliver temporary
Receipts substantially in the form set forth in Exhibit B annexed
to this Deposit Agreement which may be printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and
other variations as the Depositary may determine. If temporary
Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay.
After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at the office or agency of
the Depositary maintained for such purpose, without charge to the
holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall issue, execute and
deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange
Ex. A-3
8
shall be made at the Company's expense and without any charge
therefor. Until so exchanged, the holders of temporary Receipts shall
in all respects be entitled to the same benefits under this Deposit
Agreement, and with respect to the Stock, as holders of definitive
Receipts.
Receipts shall be executed by the Depositary by the manual
or facsimile signature of a duly authorized officer of the
Depositary. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose,
unless it shall have been executed manually or by facsimile by a
duly authorized officer of the Depositary or, if a Registrar for
the Receipts (other than the Depositary) shall have been
appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. Receipts executed as
provided in this section may be issued notwithstanding the fact
that any authorized officer of the Depositary authenticating such
Receipts shall have ceased to hold office at the time of issuance
of such Receipts. The Depositary shall record on its books each
Receipt so signed and delivered as hereafter provided.
Receipts shall be in denominations of any number of
Depositary Shares representing fractional interests in the Stock
in even multiples of 1/16th of a share of Stock. All Receipts
shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent
with the provisions of this Deposit Agreement as may be required
by the Depositary, or by the rules and regulations of the NASDAQ/
NMS or any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be included for quotation
or listed or to conform with any usage with respect thereto, or
to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to the Depositary Shares evidenced by a Receipt which
is properly endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided,
however, that until transfer of a Receipt shall be registered on
the books of the Depositary as provided in Section 2.05, the
Depositary may, notwithstanding any notice to the contrary, treat
the record holder thereof at such time as the absolute owner
thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions, the exercise of
conversion rights or to any notice provided for in this Deposit
Agreement and for all other purposes.
SECTION 2.03. REDEMPTION OF STOCK. The Company agrees that
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whenever it shall elect to redeem shares of Stock in accordance
with the provisions of the Articles of Incorporation and
Certificate of Designation, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary at least 60
days' notice of the date of such proposed redemption of Stock
(the "Redemption Date") and of the number of shares of Deposited
Stock to be so redeemed and the applicable redemption price, as
set forth in the Articles of Incorporation and Certificate of
Designation, including the amount, if any, of accrued and unpaid
dividends to the date of such redemption on the Redemption Date,
provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed
(including any accrued and unpaid dividends to the date of
redemption), the Depositary shall redeem, as of the Redemption
Date, the number of Depositary Shares representing the shares of
Deposited Stock so called for redemption by the Company. The
Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares
representing the Deposited Stock to be redeemed, first-class
postage prepaid, not less than 30 and not more than 60 days prior
to the Redemption Date, to the holders of record (determined
pursuant to Section 4.04) of the Receipts
Ex. A-4
9
evidencing the Depositary Shares representing the Deposited Stock to
be so redeemed, at the addresses of such holders as they appear on the
records of the Depositary; but neither failure to mail any such notice
to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice provided to the
Depositary by the Company shall state the Redemption Date; that the
right to convert Stock into shares of Common Stock will expire at the
close of business on the 10th day preceding the Redemption Date; the
number of Depositary Shares to be redeemed; the redemption price; the
place or places where Receipts evidencing Depositary Shares to be
redeemed are to be surrendered for payment of the redemption price;
and that dividends in respect of the Deposited Stock and the
Depositary Shares to be redeemed will cease to accumulate at the close
of business on the Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata (as
nearly as may be) as may be determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid
(a) after the 10th day preceding the Redemption Date (unless the
Company shall fail to redeem the shares of Stock to be redeemed
by it as set forth in the Company's notice provided for in the
preceding paragraph) the conversion rights in respect of the
shares of Stock called for redemption on such Redemption Date
will terminate, and (b) all dividends in respect of the shares of
Stock so called for redemption shall cease to accrue, the
Depositary Shares being redeemed shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the
redemption price and any money or other property to which the
holders of such Depositary Shares were entitled upon such
redemption) shall cease and terminate and, upon surrender in
accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if
the Depositary shall so require or if required by law), such
Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to 1/16th (as such
fraction may from time to time be adjusted, in certain events, so
as to equal at all times the fraction of an interest represented
by one Depositary Share in one share of Stock) of the redemption
price per share plus all money and other property, if any
(including amounts in respect of accrued and unpaid dividends)
has been paid in respect of the shares of Stock represented by
such Depositary Shares.
If less than all the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt, without service charge, upon its
surrender to the Depositary, a new Receipt, together with the
redemption payment, evidencing the Depositary Shares evidenced by
such prior Receipt that were not called for redemption.
SECTION 2.04. CONVERSION OF STOCK INTO COMMON STOCK. The
-------------------------------------
Company hereby agrees to accept the delivery of Receipts for
purposes of effecting conversions of the Deposited Stock
utilizing the same procedures as those provided for delivery of
certificates for the Stock to effect such conversions in
accordance with the terms and conditions of the Stock as provided
in the Certificate of Designation. Any whole number of
Depositary Shares (whether or not evenly divisible by 16)
represented by a Receipt may be surrendered for conversion. If
the Depositary Shares represented by a Receipt are to be
converted in part only, a new Receipt or Receipts will be issued
by the Depositary for the Depositary Shares not to be converted.
No fractional shares of Common Stock will be issued upon
conversion, and if such conversion will result in a fractional
share being issued, an amount will be paid in cash by the Company
equal to the value of the fractional interest based upon the
closing price of the Common Stock on the last business day prior
to the conversion. For this purpose, a holder of a Receipt or
Receipts must surrender such Receipt or Receipts to the Company,
together with a duly completed and executed Notice of Conversion
in the form included in the Receipt. In all cases the foregoing
shall be conditioned upon
Ex. A-5
10
compliance in full by the holders with the applicable terms and
conditions of the Stock as provided in the Certificate of Designation
and of this Deposit Agreement. The Company and the Depositary will
thereafter effect the cancellation of each Receipt surrendered for
such conversion and of the related Deposited Stock so converted. In
the event that the conversion of Depositary Shares results in issuance
of a fraction of a share of Stock, the Depositary will make
appropriate adjustment in its records (as contemplated in Section
2.01) to reflect such issuance and, if appropriate, the combination of
any fractions of shares into one or more whole shares of Stock.
Upon conversion no adjustments will be made for accrued
dividends and, therefore, Depositary Shares surrendered for
conversion after the record date next preceding a dividend
payment date for the Deposited Stock and prior to such dividend
payment date must be accompanied by payment of an amount equal to
the applicable fraction of the dividend thereon which is to be
paid on such dividend payment date (unless the Depositary Shares
surrendered for conversion have been called for redemption prior
to such dividend payment date). No adjustment of the conversion
price will be required to be made in any case until cumulative
adjustment amounts to 1% or more of the conversion price.
SECTION 2.05. REGISTRATION OF TRANSFER OF RECEIPTS.
------------------------------------
Subject to the terms and conditions of this Deposit Agreement,
the Depositary, as Registrar and Transfer Agent for the
Depositary Shares, shall register on its books from time to time
transfers of Receipts upon any surrender thereof by the holder in
person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer, and
duly stamped as may be required by law. Thereupon the Depositary
shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the
Receipt or Receipts surrendered.
SECTION 2.06. COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon
--------------------------------------
surrender of a Receipt or Receipts at the Depositary's Securities
Division or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
SECTION 2.07. SURRENDER OF RECEIPTS AND WITHDRAWAL OF
--------------------------------------
DEPOSITED STOCK. Unless the related Depositary Shares have
---------------
previously been called for redemption, any holder of a Receipt or
Receipts representing any number of whole shares of Stock may
withdraw the Deposited Stock and all money and other property, if
any, represented thereby by surrendering such Receipt or
Receipts, at the Depositary's Securities Division. Thereafter,
without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all
money, if any, and other property, if any, represented by the
Receipt or Receipts so surrendered for withdrawal. If a Receipt
delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess
of the number of Depositary Shares representing the number of
whole shares of Deposited Stock to be so withdrawn, the
Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money, if any, and other property,
if any, to be so withdrawn, deliver to such holder, or (subject
to Section 2.05) upon his order, a new Receipt evidencing such
excess number of Depositary Shares. In no event will fractional
shares of Stock (except as represented by Depositary Shares) be
distributed by the Depositary. Delivery of the Stock and money
being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may
deem appropriate, which, if required by law, shall be properly
endorsed or accompanied by proper instruments of transfer.
Ex. A-6
11
HOLDERS ACKNOWLEDGE THAT THERE WILL BE NO MARKET FOR THE
UNDERLYING DEPOSITED STOCK AND THAT UPON WITHDRAWAL OF THE
DEPOSITED STOCK HOLDERS THEREOF WILL NOT BE ENTITLED THEREAFTER
TO DEPOSIT SUCH STOCK UNDER THIS DEPOSIT AGREEMENT.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered
for withdrawal of Deposited Stock, such holder shall execute and
deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares
of Deposited Stock be properly endorsed in blank or accompanied
by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at its Securities Division, except that,
at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof,
such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.08. LIMITATIONS ON EXECUTION AND DELIVERY OF
----------------------------------------
RECEIPTS. As a condition precedent to the execution and
--------
delivery, registration of transfer, split-up, combination,
surrender or redemption of any Receipt, or the exercise of any
conversion right, the Depositary, any of the Depositary's Agents
or the Company may require payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any
charge or expenses payable by the holder of a Receipt pursuant to
Section 5.07, may require the production of proof satisfactory to
it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the
provisions of this Deposit Agreement as may be required by the
rules and regulations of the NASDAQ/NMS or any securities
exchange upon which the Stock, the Depositary Shares or the
Receipts may be included for quotation or listed.
The exercise of any conversion right may be suspended, or
the registration of transfer, surrender or redemption of
outstanding Receipts may be suspended (a) during any period when
the register of holders of the Stock or of the Common Stock of
the Company is closed, or (b) if any such action is deemed
reasonably necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to
time because of any requirement of law or of any government or
governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.09. LOST RECEIPTS, ETC. In case any Receipt
------------------
shall be mutilated, destroyed, lost or stolen, the Depositary in
its discretion may execute and deliver a Receipt of like form and
tenor in exchange and substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with
the Depositary of evidence of such destruction or loss or theft
of such Receipt, of the authenticity thereof and of his ownership
thereof, such evidence being reasonably satisfactory to both the
Depositary and the Company, and (ii) the furnishing to the
Depositary of an indemnity in accordance with the Depositary's
ordinary standard practice.
SECTION 2.10. CANCELLATION AND DESTRUCTION OF SURRENDERED
-------------------------------------------
RECEIPTS. All Receipts surrendered to the Depositary or any
--------
Depositary's Agent shall be cancelled by the Depositary. The
Depositary is authorized to turn over such cancelled Receipts to
the Company unless the Company instructs the Depositary to
destroy such Receipts.
Ex. A-7
12
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER
-------------------------------------
INFORMATION. Any holder of a Receipt may be required from time
-----------
to time to file such proof of residence, or other matters or
other information, and to execute such certificates and to make
such representations and warranties as the Depositary or the
Company may reasonably deem necessary and proper. The Depositary
or the Company may withhold the delivery or delay the
registration of transfer, redemption or exchange, of any Receipt
or the withdrawal of the Deposited Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of
any dividend or other distribution or the sale of any rights or
of the proceeds thereof or the exercise of any conversion right
until such proof or other information is filed or such
certificates are executed or such representations and warranties
are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL
--------------------------------------
CHARGES. As and to the extent required by the Certificate of
-------
Designation, Holders of Receipts shall be obligated to make
payments to the Depositary of certain charges and expenses, as
further provided in Section 5.07. Registration of transfer of any
Receipt or any withdrawal of Deposited Stock and all money or
other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused until any such payment
due is made, and any dividends, interest payments or other
distributions may be withheld, and any conversion right may be
refused, or any part or all of the Deposited Stock or other
property represented by the Depositary Shares evidenced by such
Receipt and not theretofore sold may be sold for the account of
the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends,
interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. WARRANTY AS TO STOCK. The Company represents
--------------------
and warrants that the Stock is validly issued, fully paid and
nonassessable. Such representation and warranty shall survive
the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. COVENANTS AND WARRANTIES AS TO COMMON STOCK.
-------------------------------------------
The Company covenants that it will keep reserved or otherwise
available a sufficient number of authorized and unissued shares
of Common Stock to meet conversion requirements in respect of the
Deposited Stock and that it will give written notice to the
Depositary of any adjustments in the conversion price made
pursuant to the Certificate of Designation. The Company
represents and warrants that the Common Stock issued upon
conversion of the Deposited Stock will be validly issued, fully
paid and non-assessable.
ARTICLE IV
THE DEPOSITED STOCK; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary
------------------
shall receive any cash dividend or other cash distribution on the
Deposited Stock, the Depositary shall, subject to Section 3.02,
distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that, in case the Company or the Depositary
Ex. A-8
13
shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Deposited
Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. In the event such withholding is
required as to only a portion but not all of the holders of
Depositary Shares, the reduced amount available for distribution
shall be chargeable only to those holders requiring such
withholding. The Depositary shall distribute or make available
for distribution, as the case any be, only such amount, however,
as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the
-----------------------------
Depositary shall receive any distribution other than cash on the
Deposited Stock, the Depositary shall, subject to Section 3.02,
distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of such distribution
received by it as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary
may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement
that the Depositary or the Company withhold an amount on account
of taxes) the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary
may, with the approval of the Company, adopt such method as it
deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of
such distribution thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to section 3.02, be
distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided
by Section 4.01 in the case of a distribution received in cash.
The Company shall not make any distribution of securities on or
in respect of the Stock to holders of Depositary Shares unless
the Company shall have provided to the Depositary an opinion of
counsel (which may be in-house counsel) stating that such
securities have been registered under the Securities Act or are
to be issued in a transaction which is exempt from the
registration requirements thereof.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR
-----------------------------------
PRIVILEGES. If the Company shall at any time offer or cause to
----------
be offered to the persons in whose names Stock is registered on
the books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in
such manner as the Company shall instruct, either by the issue to
such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be
directed by the Company; provided, however, that (a) if at the
time of issue or offer of any such rights, preferences or
privileges the Depositary determines upon advice of its legal
counsel that it is not lawful or (after consultation with the
Company) feasible to make such rights, preferences or privileges
available to holders of Receipts by the issue of warrants or
otherwise, or (b) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights,
preferences or privileges, then the Depositary, (with the
approval of the Company, in any case where the Depositary has
determined that it is not feasible to make such rights,
preferences or privileges available) may, if applicable laws or
the terms of such rights, preferences or privileges permit such
transfer, sell such rights preferences or privileges at public or
private sale at such place or places and upon such terms as it
may deem proper. The net proceeds of any such sale shall be,
subject to Sections 3.01 and 3.02, distributed by the Depositary
to the record holders of Receipts entitled
Ex. A-9
14
thereto as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of any
such rights, preferences or privileges on or in respect of the Stock
to holders of Depositary Shares unless the Company shall have provided
to the Depositary an opinion of counsel (which may be in-house
counsel) stating that such rights, preferences or privileges have been
registered under the Securities Act or are to be issued in a
transaction which is exempt from the registration requirements
thereof.
If registration under the Securities Act is required in
order for holders of Receipts to be offered or sold the
securities to which such rights, preferences or privileges
relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities
and use its best efforts and take all steps reasonably available
to it to cause such registration to become effective so as to
enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until the
Depositary has received an opinion of counsel (which may be
in-house counsel), stating that no other action under the laws of
any jurisdiction or any governmental or administrative
authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders
of Receipts and either (a) such a registration statement shall
have become effective or (b) the offering and sale of such
securities to such holders are exempt from registration under the
provisions of the Securities Act.
If any other action under the laws of any jurisdiction or
any governmental or administrative authorization, consent or
permit is required in order for such rights, preferences or
privileges to be made available to holders of Receipts, the
Company agrees with the Depositary that the Company will use its
best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.04. NOTICE OF DIVIDENDS; FIXING OF RECORD DATE
------------------------------------------
FOR HOLDERS OF RECEIPTS. Whenever any cash dividend or other
-----------------------
cash distribution shall become payable or any distribution other
than cash shall be made, or if rights, preferences or privileges
shall at any time be offered, with respect to the Stock, or
whenever the Depositary shall receive notice of any meeting at
which holders of the Stock are entitled to vote or of which
holders of the Stock are entitled to notice, or wherever the
Depositary and the Company shall decide it is appropriate, the
Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company
with respect to the Stock) for the determination of the holders
of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the
exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting or for any other appropriate
reasons. The Company shall give the Depositary not less than
10 days' notice prior to fixing any record date with respect to
the Stock for any of the aforementioned purposes.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any
-------------
meeting at which the holders of the Stock are entitled to vote,
the Depositary shall, as soon as practicable thereafter, mail to
the record holders of Receipts a notice which shall contain
(a) such information as is contained in such notice of meeting
and (b) a statement that the holders of Receipts may, subject to
any applicable restrictions, instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of
Deposited Stock represented by their respective Depositary Shares
and a brief statement as to the manner in which such instructions
may be given. Upon the written request of a holder of a Receipt
on such record date, the
Ex. A-10
15
Depositary shall endeavor insofar as practicable to vote or cause to
be voted the shares of Deposited Stock represented by the Depositary
Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. To the extent any such instructions
request the voting of a fraction of a share of Deposited Stock, the
Depositary shall aggregate such fraction with all other fractions
resulting from requests with the same voting instructions and shall
vote the number of whole shares resulting from such aggregation in
accordance with the instructions received in such requests. The
Company hereby agrees to take all action which may be deemed necessary
by the Depositary in order to enable the Depositary to vote such
Deposited Stock or cause such Stock to be voted. In the absence of
specific instructions from the holder of a Receipt, the Depositary
will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to the Stock unless directed to the
contrary by the holders of Receipts evidencing a majority of the
Depositary Shares) to the extent of the Deposited Stock represented by
the Depositary Shares evidenced by such Receipt. The Company also
agrees that it will at all times comply with the proxy rules of the
Exchange Act and with the rules and regulations of the NASDAQ/NMS or
of any securities exchange upon which the Stock, the Depositary Shares
or the Receipts may be included for quotation or listed.
SECTION 4.06. CHANGES AFFECTING DEPOSITED STOCK AND
-------------------------------------
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in
-----------------------------------------
par or stated value, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization,
reorganization, merger, consolidation or sale of all or
substantially all the Company's assets affecting the Company or
to which it is a party, the Depositary may with the approval of
the Company, and shall upon the specific instructions of the
Company, (a) make such adjustments in (i) the fraction of an
interest represented by one Depositary Share in one share of
Stock and (ii) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Stock, in each case
as may be required by or as is consistent with the provisions of
the Certificate of Designation to fully reflect the effects of
such change in liquidation value, split-up, combination or other
reclassification of Stock, or of such recapitalization,
reorganization, merger, consolidation or sale and (b) treat any
securities which shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new
deposited securities under this Deposit Agreement, and Receipts
then outstanding shall thereafter represent such new deposited
securities. In any such case the Depositary may, with the
approval of the Company, execute and deliver additional Receipts,
or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new
deposited securities. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the
Stock or any such recapitalization, reorganization, merger,
consolidation or sale of substantially all the assets of the
Company to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the
kind and amount of shares of stock and other securities and cash
into which the Deposited Stock evidenced by such Receipts might
have been converted or for which such Deposited Stock might have
been exchanged or surrendered immediately prior to the effective
date of such transaction. The Company shall cause effective
provision to be made in the charter of the resulting or surviving
corporation (if other than the Company) for protection of such
rights as may be applicable upon exchange of such Stock for
securities or property or cash of the surviving corporation in
connection with the transactions set forth above. The Company
shall cause any such surviving corporation (if other than the
Company) expressly to assume the obligations of the Company
hereunder.
SECTION 4.07. REPORTS. The Depositary shall make available
-------
for inspection by holders of Receipts at its Securities Division
and at such other places as it may from time to time deem
advisable, any reports and communications received from the
Company which are both (a) received by the
Ex. A-11
16
Depositary as the holder of Deposited Stock and (b) made generally
available to the holders of Stock by the Company. In addition, the
Depositary shall transmit certain notices and reports to the
registered holders of Receipts as provided in Section 5.05.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon
------------------------
request from time to time by the Company, the Depositary shall
furnish to it a list, as of a recent date, of the names,
addresses and holdings of Deposited Stock by all persons in whose
names Receipts are registered on the books of the Depositary.
SECTION 4.09. REQUEST OF HOLDERS. The Depositary, upon
------------------
request, shall furnish the holders of Depositary Shares with
copies of the Company's Articles of Incorporation, the
Certificate of Designation and the Deposit Agreement.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER
------------------------------------------
BOOKS BY THE DEPOSITARY; REGISTRATION. The Depositary shall
-------------------------------------
maintain at its Securities Division facilities for the execution
and delivery, transfer, surrender and redemption of Receipts, and
at the offices of the Depositary's Agents, if any, facilities for
the delivery, transfer, surrender and redemption of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at its Securities Division
for the registration and registration of transfer of Receipts,
which books at all reasonable times shall be open for inspection
by the record holders of Receipts; provided that such inspection
shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares evidenced by the
Receipts. The Depositary may close such books, at any time or
from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby
or the Deposited Stock represented by such Depositary Shares
shall be included for quotation on the NASDAQ/NMS, the Company
may, if necessary to conform to the rules and regulations of the
included for quotation on the NASDAQ/NMS or any securities
exchange upon which the Stock, the Depositary Shares or the
Receipts may be included for quotation or listed, appoint a
Registrar for registration of such Receipts or Depositary Shares
in accordance with any requirements of such Exchange. Such
Registrar (which may be the Depositary if so permitted by the
requirements of the NASDAQ/NMS or such Exchange) may be removed
and a substitute Registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts,
such Depositary Shares or such Deposited Stock are included for
quotation on NASDAQ/NMS or listed on one or more other stock
exchanges, the Depositary will, at the request of the Company,
arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such Stock as may be required
by law, by NASDAQ/NMS or by applicable stock exchange regulation.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE
-----------------------------------------
DEPOSITARY, THE DEPOSITARY'S AGENTS OR THE COMPANY. Neither the
--------------------------------------------------
Depositary nor any Depositary's Agent nor the Company shall incur
any liability to any holder of any Receipt, if (i) by reason of
any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other
governmental authority
Ex. A-12
17
or, in the case of the Depositary or the Depositary's Agent, by reason
of any provision, present or future, of the Articles of Incorporation
or Certificate of Designation, or (ii) by reason of any act of God or
war or other circumstance beyond the control of the relevant party,
the Depositary, the Depositary's Agent or the Company shall be
prevented or forbidden from doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done
or performed; nor shall the Depositary, any Depositary's Agent or
the Company incur any liability to any holder of a Receipt by
reason of non-performance or delay caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit
Agreement provide shall or may be done or performed or by reason
of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE
----------------------------------
DEPOSITARY'S AGENTS AND THE COMPANY. Neither the Depositary nor
-----------------------------------
any Depositary's Agent nor the Company assumes any obligation,
nor shall be subject to any liability under this Deposit
Agreement to holders of Receipts, except that nothing herein
shall relieve the Depositary, the Depositary's Agent or the
Company for liability to such holders from acts or omissions
arising out of conduct finally adjudicated to constitute gross
negligence or bad faith on the part of such person or persons in
the performance of such duties as are specifically set forth in
this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the
Deposited Stock, the Depositary Shares or the Receipts, which in
its reasonable opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and
liability is furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be liable (i) if it is prevented or delayed by law
or any circumstance beyond its control in performing its
obligations under this Deposit Agreement, or (ii) for any action
or any failure to act by it in reliance upon the advice of legal
counsel (which may be in-house counsel) or accountants. The
Depositary, any Depositary's Agent and the Company may each rely
and shall each be protected in acting upon any written notice,
request, direction or other document delivered by it to be
genuine and to have been signed or presented by the proper party
or parties.
The Depositary and any Depositary's Agent may own and deal
in any class of securities of the Company and its affiliates and
in Receipts. The Depositary may also act as Transfer Agent or
Registrar of any of the securities of the Company and its
affiliates, including, without limitation, the Common Stock as to
which the Depositary, at the date hereof, is Transfer Agent and
Registrar.
Neither the Depositary nor any of the Depositary's Agents is
a trustee for the benefit of holders of the Receipts. It is
intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the securities under the
federal securities laws or applicable state securities laws, it
being expressly understood and agreed that the Depositary and the
Depositary's Agents are acting only in a ministerial capacity as
Depositary for the Deposited Stock.
Neither the Depositary (or its officers, directors,
employees or agents) nor any Depositary's Agent makes any
representation or has any responsibility as to the validity of
the Registration Statement, the Deposited Stock, the Depositary
Shares or any instruments referred to therein or herein, or as to
the correctness of any statement made therein or herein;
provided, however, that the Depositary is
Ex. A-13
18
responsible for (i) its representations in this Deposit Agreement and
(ii) the validity of any action taken or required to be taken by the
Depositary in connection with this Deposit Agreement.
Notwithstanding any other provisions herein or set forth in
the Receipts, the Depositary makes no warranties or
representations as to the validity, genuineness or sufficiency of
any Deposited Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares as to the value of the
Depositary Shares, the Deposited Stock or Receipts or as to any
right, title or interest of the record holders of the Receipts to
the Depositary Shares or Deposited Stock represented thereby.
The Depositary shall not be accountable for the use or
application by the Company of the Deposited Stock, the Depositary
Shares or Receipts or the proceeds of any thereof.
The Company agrees that it will register the Deposited Stock
and the Depositary Shares in accordance with applicable
securities laws.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
------------------------------------------
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any
-----------------------------------
time resign as Depositary hereunder by notice of its election so
to do delivered to the Company, such resignation to take effect
upon the appointment of a successor Depositary, Registrar and
Transfer Agent and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal
to take effect upon the appointment of a successor Depositary,
Registrar and Transfer Agent and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the
delivery of the notice of resignation or removal, as the case may
be, appoint a successor Depositary, which shall be a bank or
trust company having its principal office in the United States of
America and having a combined capital and surplus of at least
$50,000,000. Every successor Depositary, Registrar and Transfer
Agent shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment
hereunder, and thereupon such successor Depositary, Registrar and
Transfer Agent without any further act or deed, shall become
fully vested with all the rights, powers, duties and obligations
of its predecessor and for all purposes shall be the Depositary
under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company,
shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all right, title and
interest in the Deposited Stock and any moneys or property held
hereunder to such successor, and shall deliver to such successor
a list of the record holders of all outstanding Receipts. Any
such successor Depositary shall promptly mail notice of its
appointment to the record holders of the Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act. Such successor Depositary may authenticate the
Receipts in the name of its predecessor Depositary or in the name
of the successor.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company
-----------------------------
agrees that it will deliver to the Depositary, and the Depositary
will, promptly after receipt thereof, transmit to the record
holders of Receipts in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including,
without limitation, financial statements) required by law, by the
rules of the NASDAQ/NMS
Ex. A-14
19
or any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are included for quotation or listed
or by the Articles of Incorporation or Certificate of Designation to
be furnished by the Company to holders of Deposited Stock. Such
transmissions will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as
the Depositary may reasonably request. In addition, the Depositary
will transmit to the holders of Receipts (at the Company's expense)
such other documents as shall be directed by the Company.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company
------------------------------
agrees to indemnify the Depositary and any Depositary's Agent,
against and hold each of them harmless from, any liability which
may arise out of acts performed or omitted in connection with the
provisions of this Deposit Agreement, as the same may be amended,
modified or supplemented from time to time, and the Receipts
(a) by the Depositary, or any of the Depositary's Agents, except
for any liability arising out of gross negligence or bad faith on
the part of any such person or persons, or (b) by the Company or
any of the Company's Agents (other than the Depositary or the
Depositary's Agents).
SECTION 5.07. CHARGES AND EXPENSES. No charges and
--------------------
expenses of the Depositary or any Depositary's Agent hereunder
shall be payable by any person, except for any taxes and other
governmental charges and except as provided in this Section 5.07.
The Company will pay charges of the Depositary in connection with
the initial deposit of the Deposited Stock and any redemption of
the Stock and will pay all transfer and other taxes and
governmental charges arising solely from the existence of this
Deposit Agreement. If, at the election of a holder of Deposited
Stock or Receipts, any delivery or communication from the
Depositary to such holder is by telegram or telex or if the
Depositary incurs charges or expenses for which it is not
otherwise liable hereunder at the election of such holder, such
holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary and any Depositary's Agent
hereunder (including fees and expenses of counsel) incident to
the performance of its obligations hereunder will be promptly
paid by the Company as previously agreed upon by the Company and
the Depositary. The Depositary shall present its statement for
charges and expenses to the Company once every three months or at
such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any
---------
provisions of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable. However, any amendment which shall materially and
adversely alter the rights of holders of Receipts, shall not
become effective unless such amendment has been approved by the
record holders of at least a majority of the number of the
Depositary Shares then outstanding. In no event shall any
amendment impair the right, subject to the provisions of
Sections 2.07 and 2.08 and Article III, of any owner of any
Depositary Shares to surrender the Receipt evidencing such
Depositary Shares with instructions to the Depositary to deliver
to the holder the Deposited Stock and all money and other
property, if any, represented thereby, except in order to comply
with mandatory provisions of applicable law.
SECTION 6.02. TERMINATION. This Deposit Agreement may only
-----------
be terminated by the Company or the Depositary by written notice
to the other party if (i) all outstanding Depositary Shares
issued pursuant hereto have been redeemed or converted into
Common Stock or (ii) there has been a final
Ex. A-15
20
distribution in respect of the Deposited Shares in connection with a
liquidation, dissolution or winding up of the Company and such
distribution has been distributed to the holders of the Depositary
Shares entitled thereto. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the
Depositary and any Depositary's Agent under Section 5.06 and
5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be
------------
executed in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which
Counterparts when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall
constitute one and the same instrument. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at
the Depositary's Securities Division and the respective offices
of the Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit
----------------------------
Agreement is for the exclusive benefit of the parties hereto, and
their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other
person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or
------------------------
more of the provisions contained in this Deposit Agreement or in
the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to
-------
the Company hereunder or under the Receipts shall be in writing
and shall be deemed to have been duly given if personally
delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or at
any other place of which the Company has notified the Depositary
in writing.
Any and all notices to be given to the Depositary hereunder
or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail or
by telegram or telex confirmed by letter, addressed to the
Depositary at its Securities Division.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered
or sent by mail or by telegram or telex confirmed by letter,
addressed to such record holder at the address of such record
holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request
that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex
shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case
of a telegram or telex message) is deposited, postage prepaid, in
a post office letter box. The Depositary or the Company may,
however, act upon any facsimile transmission, telegram or telex
message received by it
Ex. A-16
21
from the other or from any holder of a Receipts notwithstanding that
such telegram or telex message shall not subsequently be confirmed by
letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may with
-------------------
the approval of the Company (such approval not to be unreasonably
withheld or denied) from time to time appoint Depositary's Agents
(which may include a Registrar appointed pursuant to
Section 5.01) to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint
additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will
notify the Company of any such action.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders
-------------------------------
of Receipts from time to time shall be deemed to be parties to
this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance of delivery
thereof.
SECTION 7.07. GOVERNING LAW. The Deposit Agreement and the
-------------
Receipts and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, and construed in
accordance with, the laws of the State of Kansas.
SECTION 7.08. HEADINGS. The headings of articles and
--------
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit B hereto have been inserted for convenience
only and are not to be regarded as a part of this Deposit
Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto by
and upon acceptance by them of delivery of, Receipts issued in
accordance with the terms hereof.
FOURTH FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
Attest:
/s/
---------------------------
Secretary
BANK IV KANSAS, NATIONAL ASSOCIATION,
as Depositary
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Attest:
/s/
---------------------------
Secretary
Ex. A-17
22
EXHIBIT A
FORM OF
COMPANY'S CERTIFICATE OF DESIGNATION
------------------------------------
EX. A-18
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
To all to whom these presents shall come, Greetings:
I, ▇▇▇▇ ▇▇▇▇▇▇, Secretary of State of the State of Kansas,
do hereby certify that the attached is a true and correct
copy of an original on file and of record in this office.
In testimony whereof:
I hereto set my hand and cause to
be affixed my official seal. Done
at the City of Topeka on the date
below:
▇▇▇▇ ▇▇▇▇▇▇
SECRETARY OF STATE
BY
ASSISTANT SECRETARY OF STATE
Ex. A-19
24
CERTIFICATE OF DESIGNATION
RIGHTS AND PREFERENCES
OF THE
CLASS A CUMULATIVE CONVERTIBLE PREFERRED STOCK
$100 PAR VALUE
OF
FOURTH FINANCIAL CORPORATION
-------------------------------
Pursuant to Section 17-6401 of the
General Corporation Code
of the State of Kansas
-------------------------------
FOURTH FINANCIAL CORPORATION, a corporation organized and
existing under the General Corporation Code of the State of
Kansas (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The Restated Articles of Incorporation of the
corporation, as amended, authorize the issuance of 250,000 shares
of preferred stock, $100 par value, of the Corporation
("Preferred Stock") in one or more series, and authorizes the
Board of Directors to fix by resolution or resolutions the
designation of each series of Preferred Stock and the powers,
preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions
thereof.
SECOND: The Restated Articles of Incorporation of the
Corporation, as amended, authorize the issuance of 50,000,000
shares of Common Stock of which 3,448,276 shares have been
reserved for issuance upon conversion of the Class A Preferred
Stock, as hereinafter defined, in accordance with Section 5 of
this Certificate of Designation.
THIRD: The Board of Directors of the Corporation, pursuant
to resolutions adopted at a regular meeting of the Board of
Directors duly held on January 23, 1992, authorized the issuance,
the public offering and the sale of shares of a series of
Preferred Stock of the Corporation, to be designated as the
Class A Cumulative Convertible Preferred Stock (the "Class A
Preferred Stock"), and authorized the Executive Committee of the
Board of Directors to approve the price at which, the title,
dividend rate,
Ex. A-20
25
form, and number of shares of which the Class A Preferred Stock shall
be offered to the public; the underwriting discount, agency fees or
similar selling costs; the period or periods within which, and the
price at which, the Class A Preferred Stock may be redeemed by the
Corporation, if any; to approve or ratify the Registration Statement
for the Class A Preferred Stock and all amendments and supplements
thereto; to fix the terms at which the Class A Preferred Stock can be
converted into the Common Stock of the Corporation and to reserve
the number of shares of Common Stock issuable upon the conversion
of any such series of Class A Preferred Stock; to establish such
other terms and make such other changes in the terms of the
proposed issue of Class A Preferred Stock; and to approve all the
forms of instruments relating thereto, and any changes therein,
not inconsistent with the foregoing, as such Committee deemed to
be desirable and in the best interests of the Corporation.
FOURTH: Pursuant to the authority previously granted to it
by the Board of Directors, the Executive Committee of the Board
of Directors of the Corporation, at a meeting duly held on
February 13, 1992, did duly adopt the following resolutions
providing for the designation, powers, preferences, and rights,
and the qualifications, limitations, and/or restrictions thereof,
of Class A Cumulative Convertible Preferred Stock, $100 par
value, of the Corporation:
BE IT RESOLVED, that the Executive Committee of the Board of
Directors of Fourth Financial Corporation (the "Corporation"),
pursuant to authority vested in it by the Board of Directors and
in accordance with the provisions of the Restated Articles of
Incorporation, as amended, of the Corporation, hereby approves
the issuance of a series of the Class A Cumulative Convertible
Preferred Stock, $100 par value, of the Corporation and hereby
fixes the powers, preferences, rights, and qualifications,
limitations and restrictions thereof in addition to those set
forth in said Restated Articles of Incorporation, as amended, as
follows:
1. DESIGNATION. The designation of the series of
-----------
Preferred Stock created by this resolution shall be Class A
Cumulative Convertible Preferred Stock, $100 par value, of the
Corporation (hereinafter referred to as "Class A Preferred
Stock"), and the number of shares constituting such series shall
be 250,000, which number may be increased (but not above the
total number of shares of Preferred Stock of the Corporation then
authorized by the Restated Articles of Incorporation, as amended
from time to time) or decreased (but not below the number of
shares then outstanding) from time to time by the Board of
Directors. The Class A Preferred Stock shall rank prior to the
Common Stock of the Corporation with respect to the payment of
dividends and the distribution of assets.
2. DIVIDEND RIGHTS.
---------------
(a) The holders of shares of Class A Preferred Stock
shall be entitled to receive, when and as declared by the Board
of Directors, out of funds legally available therefor, cash
dividends, accruing from the date of initial issuance, at the
annual rate of 7.00% per annum, and no more, payable, when and as
declared by the Board of Directors, quarterly on March 1, June 1,
September 1, and December 1 of each year (each quarterly period
ending on any such date being hereinafter referred to as a
"dividend period"), commencing June 1, 1992, at such annual rate.
Each dividend will be payable to holders of record as they appear
on the stock books of the Corporation on such record dates as
shall be fixed by the Board of Directors of the Corporation. The
date of initial issuance of shares of Class A Preferred Stock is
hereinafter referred to as the "Issue Date". Dividends payable
on the Class A Preferred Stock (i) for any period other than a
full dividend period shall be computed on the basis of a 360-day
year consisting of twelve 30-day months and (ii) for each full
dividend period shall be computed by dividing the annual dividend
rate by four.
Ex. A-21
26
(b) Dividends on shares of Class A Preferred Stock
shall be cumulative from the Issue Date whether or not there
shall be funds legally available for the payment thereof. If
there shall be outstanding shares of any other series of
Preferred Stock ranking junior to or on a parity with the Class A
Preferred Stock as to dividends, no dividends shall be declared
or paid or set apart for payment on any such other series for any
period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment
on the Class A Preferred Stock for all dividend periods
terminating on or prior to the date of payment of such dividends.
If dividends on the Class A Preferred Stock and on any other
series of Preferred Stock ranking on a parity as to dividends
with the Class A Preferred Stock are in arrears, in making any
dividend payment on account of such arrears, the Corporation
shall make payments ratably upon all outstanding shares of the
Class A Preferred Stock and shares of such other series of
Preferred Stock in proportion to the respective amounts of
dividends in arrears on the Class A Preferred Stock and on such
other series of Preferred Stock to the date of such dividend
payment. Holders of shares of the Class A Preferred Stock shall
not be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends on such
shares. No interest or sum of money in lieu of interest shall be
payable in respect of any dividend payment or payments which may
be in arrears.
(c) Unless full cumulative dividends on all
outstanding shares of the Class A Preferred Stock shall have been
paid or declared and set aside for payment for all past dividend
periods, no dividend (other than a dividend in Common Stock or in
any other stock ranking junior to the Class A Preferred Stock as
to dividends and the distribution of assets upon liquidation,
dissolution or winding up) shall be declared upon the Common
Stock or upon any other stock ranking junior to the Class A
Preferred Stock as to dividends and the distribution of assets
upon liquidation, dissolution, or winding up, nor shall any
Common Stock or any other stock of the Corporation ranking junior
to or on a parity with the Class A Preferred Stock as to
dividends or upon the distribution of assets upon liquidation,
dissolution or winding up be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of
any such stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to the
Class A Preferred Stock as to dividends and the distribution of
assets upon liquidation, dissolution or winding up).
3. LIQUIDATION PREFERENCES.
-----------------------
(a) In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary
or involuntary, the holders of Class A Preferred Stock shall be
entitled to receive out of the assets of the Corporation
available for distribution to stockholders an amount equal to
$400.00 per share plus an amount equal to any accrued and unpaid
dividends thereon to and including the date of such distribution,
and no more, before any distribution shall be made to the holders
of Common Stock or any other class of stock of the Corporation
ranking junior to the Class A Preferred Stock as to the
distribution of assets. After payment of such liquidating
distributions, the holders of shares of Class A Preferred Stock
will not be entitled to any further participation in any
distribution of assets by the Corporation.
(b) In the event the assets of the Corporation
available for distribution to stockholders upon any liquidation,
dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, shall be insufficient to pay in
full the amounts payable with respect to the Class A Preferred
Stock and any other shares of Preferred Stock ranking on a parity
with the Class A Preferred Stock as to the distribution of
assets, the holders of Class A Preferred Stock and the holders of
such other
Ex. A-22
27
Preferred Stock shall share ratably in any distribution of assets of
the Corporation in proportion to the full respective preferential
amounts to which they are entitled.
(c) The merger or consolidation of the Corporation
into or with any other corporation, the merger or consolidation
of any other corporation into or with the Corporation or the sale
of the assets of the Corporation substantially as an entirety
shall not be deemed a liquidation, dissolution or winding up of
the affairs of the Corporation within the meaning of this
Section 3.
4. REDEMPTION.
----------
(a) Subject to obtaining the prior approval of the
Board of Governors of the Federal Reserve System, the
Corporation, at its option, may redeem any or all shares of
Class A Preferred Stock, at any time or from time to time, on or
after March 1, 1997 at a redemption price of $400.00 per share,
plus an amount equal to accrued and unpaid dividends thereon to
and including the date of redemption (the "Redemption Price").
(b) If less than all the outstanding shares of Class A
Preferred Stock are to be redeemed, the shares to be redeemed
shall be selected pro rata as nearly as practicable or by lot, or
by such other method as the Board of Directors may determine to
be fair and appropriate.
(c) Notice of any redemption shall be given by first
class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the date fixed for redemption to the
holders of record of the shares of Class A Preferred Stock to be
redeemed, at their respective addresses appearing on the books of
the Corporation. Notice so mailed shall be conclusively presumed
to have been duly given whether or not actually received. Such
notice shall state: (i) the date fixed for redemption; (ii) the
Redemption Price; (iii) that the holder has the right to convert
such shares into Common Stock until the close of business on the
tenth day preceding the redemption date; (iv) the then-effective
conversion price and the place where certificates for such shares
may be surrendered for conversion; (v) the number of shares of
Class A Preferred Stock to be redeemed and if less than all the
shares held by such holder are to be redeemed, the number of such
shares to be so redeemed from such holder; (vi) the place where
certificates for such shares are to be surrendered for payment of
the Redemption Price; and (vii) that after such date fixed for
redemption the shares to be redeemed shall not accrue dividends.
If such notice is mailed as aforesaid, and if on or before the
date fixed for redemption funds sufficient to redeem the shares
called for redemption are set aside by the Corporation in trust
for the account of the holders of the shares to be redeemed,
notwithstanding the fact that any certificate for shares called
for redemption shall not have been surrendered for cancellation,
on and after the redemption date the shares represented thereby
so called for redemption shall be deemed to be no longer
outstanding, dividends thereon shall cease to accrue and all
rights of the holders of such shares as stockholders of the
Corporation shall cease (except the right to receive the
Redemption Price, without interest, upon surrender of the
certificate representing such shares). Upon surrender in
accordance with the aforesaid notice of the certificate for any
shares so redeemed (duly endorsed or accompanied by appropriate
instruments of transfer, if so required by the Corporation in
such notice), the holders of record of such shares shall be
entitled to receive the Redemption Price, without interest.
Notwithstanding the foregoing, however, as and to the extent that
the Corporation is required or permitted under the abandoned
property laws of any jurisdiction to escheat any redemption funds
held in trust for the benefit of any holder, the Corporation
shall be absolved of any further obligation or liability to such
holder to the full extent provided by any such law. In case
fewer than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
Ex. A-23
28
(d) At the option of the Corporation, if notice of
redemption is mailed as aforesaid, and if prior to the date fixed
for redemption funds sufficient to pay in full the Redemption
Price are deposited in trust, for the account of the holders of
the shares to be redeemed, with a bank or trust company named in
such notice doing business in the State of Kansas or the Borough
of Manhattan, The City of New York, State of New York, and having
capital and surplus of at least $50 million (which bank or trust
company also may be the transfer agent and/or paying agent for
the Class A Preferred Stock) notwithstanding the fact that any
certificate(s) for shares called for redemption shall not have
been surrendered for cancellation, on and after such date of
deposit the shares represented thereby so called for redemption
shall be deemed to be no longer outstanding, and all rights of
the holders of such shares as shareholders of the Corporation
shall cease, except the right of the holders thereof to convert
such shares in accordance with the provisions of Section 5 at any
time prior to the close of business on the tenth day preceding
the redemption date and the right of the holders thereof to
receive out of the funds so deposited in trust the Redemption
Price, without interest, upon surrender of the certificate(s)
representing such shares. Any funds so deposited with such bank
or trust company in respect of shares of Class A Preferred Stock
converted before the close of business on the tenth day preceding
the redemption date shall be returned to the Corporation upon
such conversion. Unless otherwise required by law, any funds so
deposited with such bank or trust company which shall remain
unclaimed by the holders of shares called for redemption at the
end of two years after the redemption date shall be repaid to the
Corporation, on demand, and thereafter the holder of any such
shares shall look only to the Corporation for the payment,
without interest, of the Redemption Price. Notwithstanding the
foregoing, however, as and to the extent that the Corporation is
required or permitted under the abandoned property laws of any
jurisdiction to escheat any redemption funds held in trust for
the benefit of any holder, the Corporation shall be absolved of
any further obligation or liability to such holder to the full
extent provided by any such laws.
(e) Any provision of this Section 4 to the contrary
notwithstanding, in the event that any quarterly dividend payable
on the Class A Preferred Stock shall be in arrears and until all
such dividends in arrears shall have been paid or declared and
set apart for payment, the Corporation shall not redeem any
shares of Class A Preferred Stock unless all outstanding shares
of Class A Preferred Stock are simultaneously redeemed and shall
not purchase or otherwise acquire any shares of Class A Preferred
Stock except in accordance with a purchase or exchange offer made
on the same terms to all holders of record of Class A Preferred
Stock for the purchase of all outstanding shares thereof.
5. CONVERSION RIGHTS. The holders of shares of Class A
-----------------
Preferred Stock shall have the right, at their option, to convert
such shares into shares of Common Stock on the following terms
and conditions:
(a) Shares of Class A Preferred Stock shall be
convertible at any time into fully paid and nonassessable shares
of Common Stock at a conversion price of $29.00 per share of
Common Stock (the "Conversion Price"). For purposes of this
Section 5, references to shares of Class A Preferred Stock shall
apply equally to fractional shares thereof, but only to the
extent that such fractional shares are integral multiples of 1/16
of one share. The Conversion Price shall be subject to
adjustment from time to time as hereinafter provided. For
purposes of such conversion, each share of Class A Preferred
Stock will be valued at $400. No payment or adjustment shall be
made on account of any accrued and unpaid dividends on shares of
Class A Preferred Stock surrendered for conversion prior to the
record date for the determination of stockholders entitled to
such dividends or on account of any dividends on the shares of
Common Stock issued upon such conversion subsequent to the record
date for the determination of stockholders entitled to such
dividends. If any shares of Class A Preferred Stock shall be
called for
Ex. A-24
29
redemption, the right to convert the shares designated for redemption
shall terminate at the close of business on the tenth day preceding
the date fixed for redemption unless default is made in the payment of
the Redemption Price. In the event of default in the payment of the
Redemption Price, the right to convert the shares designated for
redemption shall terminate at the close of business on the business
day immediately preceding the date that such default is cured.
(b) In order to convert shares of Class A Preferred
Stock into Common Stock, the holder thereof shall surrender the
certificates therefor, duly endorsed if the Corporation shall so
require, or accompanied by appropriate instruments of transfer
satisfactory to the Corporation, at the office of the transfer
agent for the Class A Preferred Stock, or at such other office as
may be designated by the Corporation, together with written
notice that such holder irrevocably elects to convert such shares
or any fraction of a share of Class A Preferred Stock having a
denominator of 16, each such fractional interest, measured in
1/16 of a share, being valued for purposes of conversion at $25;
references in this Section 5 to the conversion of any share of
Class A Preferred Stock shall also apply, mutatis mutandis, to
------- --------
such fractional interests. Such notice shall also state the name
and address in which such holder wishes the certificate for the
shares of Common Stock issuable upon conversion to be issued. As
soon as practicable after receipt of the certificates
representing the shares of Class A Preferred Stock to be
converted and the notice of election to convert the same, the
Corporation shall issue and deliver at said office a certificate
for the number of whole shares of Common Stock issuable upon
conversion of the shares of Class A Preferred Stock surrendered
for conversion, together with a cash payment in lieu of any
fraction of a share, as hereinafter provided, to the person
entitled to receive the same. If more than one stock certificate
for Class A Preferred Stock shall be surrendered for conversion
at one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed
on the basis of the aggregate number of shares represented by all
the certificates so surrendered. Shares of Class A Preferred
Stock shall be deemed to have been converted immediately prior to
the close of business on the date such shares are surrendered for
conversion and notice of election to convert the same is received
by the Corporation in accordance with the foregoing provision,
and the person entitled to receive the Common Stock issuable upon
such conversion shall be deemed for all purposes as the record
holder of such Common Stock as of such date.
(c) In the case of any share of Class A Preferred
Stock which is converted after any record date with respect to
the payment of a dividend on the Class A Preferred Stock and on
or prior to the date on which such dividend is payable by the
Corporation (the "Dividend Due Date"), the dividend due on such
Dividend Due Date shall be payable on such Dividend Due Date to
the holder of record of such shares as of such preceding record
date notwithstanding such conversion. Shares of Class A
Preferred Stock surrendered for conversion during the period from
the close of business on any record date with respect to the
payment of a dividend on the Class A Preferred Stock next
preceding any Dividend Due Date to the opening of business on
such Dividend Due Date shall (except in the case of shares of
Class A Preferred Stock which have been called for redemption on
a redemption date within such period) be accompanied by payment
in New York Clearing House funds or other funds acceptable to the
Corporation of an amount equal to the dividend payable on such
Dividend Due Date on the shares of Class A Preferred Stock being
surrendered for conversion. The dividend with respect to a share
of Class A Preferred Stock called for redemption on a redemption
date during the period from the close of business on any record
date with respect to the payment of a dividend on the Class A
Preferred Stock next preceding any Dividend Due Date to the
opening of business on such Dividend Due Date shall be payable on
such Dividend Due Date to the holder of record of such share on
such dividend record date, notwithstanding the conversion of such
share of Class A Preferred Stock after such record date and prior
to such Dividend Due Date, and the holder converting such share
of Class A Preferred Stock called for
Ex. A-25
30
redemption need not include a payment of such dividend amount upon
surrender of such share of Class A Preferred Stock for conversion.
Except as provided in this subsection, no payment or adjustment shall
be made upon any conversion on account of any dividends accrued on
shares of Class A Preferred Stock surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon
conversion.
(d) No fractional shares of Common Stock shall be
issued upon conversion of any shares of Class A Preferred Stock.
If more than one share of Class A Preferred Stock is surrendered
at one time by the same holder, the number of full shares
issuable upon conversion thereof shall be computed on the basis
of the aggregate number of shares so surrendered. If the
conversion of any shares of Class A Preferred Stock results in a
fractional share of Common Stock, the Corporation shall pay cash
in lieu thereof in an amount equal to such fraction multiplied by
the closing price, determined as provided in subsection (vi) of
Section 5(e) below, on the date on which the shares of Class A
Preferred Stock were duly surrendered for conversion, or if such
date is not a trading date, on the next succeeding trading date.
(e) The conversion Price shall be adjusted from time
to time as follows:
(i) In case the Corporation shall pay or make a
dividend or other distribution on shares of Common Stock in
Common Stock, the Conversion Price in effect at the opening
of business on the date following the date fixed for the
determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination and the denominator shall be the sum of
such number of shares and the total number of shares
constituting such dividend or other distribution, such
reduction to become effective immediately after the opening
of business on the day following the date fixed for such
determination. For purposes of this subsection, the number
of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Corporation but
shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common
Stock. The Corporation will not pay any dividend or make
any distribution on shares of Common Stock held in the
treasury of the Corporation.
(ii) In case the Corporation shall issue
additional rights or warrants to all holders of its Common
Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the then current
market price per share (determined as provided in
subsection (vi) below) of the Common Stock on the date fixed
for the determination of stockholders entitled to receive
such rights or warrants (other than pursuant to a dividend
reinvestment plan), the Conversion Price in effect at the
opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination
plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or
purchase would purchase at such current market price
(determined as provided in subsection (vi) below) and the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to
become effective immediately after the opening of business
on the day following the date fixed for such determination.
For the purposes of this subsection (ii), the number of
shares of Common Stock at anytime outstanding shall not
include shares held in the
Ex. A-26
31
treasury of the Corporation but shall include shares
issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Corporation will
not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Corporation during
the period so held.
(iii) In case outstanding shares of Common Stock
shall be subdivided into a greater number of shares of
Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such
subdivision becomes effective shall be proportionately
reduced, and, conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Price in effect at
the opening of business on the day following the day upon
which such combination becomes effective shall be
proportionately increased, such reduction or increase, as
the case may be, to become effective immediately after the
opening of business on the day following the day upon which
such subdivision or combination becomes effective.
(iv) In case the Corporation shall, by dividend
or otherwise, distribute to all holders of its Common Stock
evidences of its indebtedness or assets (including
securities, but excluding (1) any rights or warrants
referred to in subsection (ii) above, (2) any dividend or
distribution paid in cash out of the retained earnings of
the Corporation and (3) any dividend or distribution
referred to in subsection (i) above), the Conversion Price
shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed
for the determination of stockholders entitled to receive
such distribution by a fraction of which the numerator shall
be the current market price per share (determined as
provided in subsection (vi) below) of the Common Stock on
the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and shall be described in
a statement filed with the transfer agent for the Class A
Preferred Stock) of the portion of the evidences of
indebtedness or assets so distributed applicable to one
share of Common Stock and the denominator shall be such
current market price per share of the Common Stock, such
adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for
the determination of stockholders entitled to receive such
distribution.
(v) For the purposes of this Section 5, the
reclassification of Common Stock into securities including
securities other than Common Stock (other than any
reclassification upon a consolidation or merger to which
Section 5(g) below applies) shall be deemed to involve (A) a
distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for
the determination of stockholders entitled to receive such
distribution" and the "date fixed for such determination"
within the meaning of subsection (iv) above), and (B) a
subdivision or combination, as the case may be, of the
number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of
Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to
be "the day upon which such subdivision became effective" or
"the day upon which such combination becomes effective" as
the case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of
subsection (iii) above).
(vi) For the purpose of any computation under
subsections (ii) and (iv) above, the current market price
per share of Common Stock on any day shall be deemed to be the
Ex. A-27
32
average of the daily closing prices for the 30 consecutive
trading days commencing 45 trading days before the day in
question. The closing price for each day shall be the
reported last sale price or, in case no such reported
sale takes place on such day, the average of the reported
closing bid and asking prices, in either case on the
National Association of Securities Dealers Automated
Quotations National Market System or, if the Common Stock is
no longer quoted to trading on such system, on the principal
national securities exchange on which the Common Stock is
then listed or admitted to trading or, if the Common Stock
is not quoted on such National Market System or listed or
admitted to trading on any national securities exchange, the
average of the closing bid and asked prices in the over-the-
counter market as furnished by any New York Stock Exchange
member firm selected from time to time by the Board of
Directors for that purpose.
(vii) Notwithstanding the foregoing, no
adjustment in the Conversion Price for the Class A Preferred
Shares shall be required unless such adjustment would
require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by
-------- -------
reason of this subsection (vii) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section
shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
(f) Whenever the Conversion Price shall be adjusted as
herein provided (i) the Corporation shall forthwith make
available at the office of the transfer agent for the Class A
Preferred Stock a statement describing in reasonable detail the
adjustment, the facts requiring such adjustment and the method of
calculation used; and (ii) the Corporation shall cause to be
mailed by first class mail, postage prepaid, as soon as
practicable to each holder of record of shares of Class A
Preferred Stock a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion Price.
(g) In the event of any consolidation of the
Corporation with or merger of the Corporation into any other
corporation (other than a merger in which the Corporation is the
surviving corporation) or a sale, lease or conveyance of the
assets of the Corporation as an entirety or substantially as an
entirety, or any statutory exchange of securities with another
corporation, the holder of each share of Class A Preferred Stock
shall have the right, after such consolidation, merger, sale or
exchange to convert such share into the number and kind of shares
of stock or other securities and the amount and kind of property
which such holder would have been entitled to receive upon such
consolidation, merger, sale or exchange of the number of shares
of Common Stock that would have been issued to such holder had
such shares of Class A Preferred Stock been converted immediately
prior to such consolidation, merger or sale. The provisions of
this Section 5(g) shall similarly apply to successive
consolidations, mergers, sales or exchanges.
(h) The Corporation shall pay any taxes that may be
payable in respect of the issuance of shares of Common Stock upon
conversion of shares of Class A Preferred Stock, but the
Corporation shall not be required to pay any taxes which may be
payable in respect of any transfer involved in the issuance of
shares of Common Stock in the name other than that in which the
shares of Class A Preferred Stock so converted are registered,
and the Corporation shall not be required to issue or deliver any
such shares unless and until the person requesting such issuance
shall have paid to the Corporation the amount of any such taxes,
or shall have established to the satisfaction of the Corporation
that such taxes have been paid.
Ex. A-28
33
(i) The Corporation may (but shall not be required to)
make such reductions in the Conversion Price, in addition to
those required by subsections (i) through (iv) of Section 5(e)
above, as it considers to be advisable in order that any event
treated for federal income tax purposes as a dividend of stock or
stock rights shall not be taxable to the recipients.
(j) The Corporation shall at all times reserve and
keep available out of its authorized but unissued Common Stock
the full number of shares of Common Stock issuable upon the
conversion of all shares of Class A Preferred Stock then
outstanding.
(k) In the event that:
(i) the Corporation shall declare a dividend or
any other distribution on its Common Stock, payable
otherwise than in cash out of retained earnings; or
(ii) the Corporation shall authorize the granting
to the holders of its Common Stock of rights to subscribe
for or purchase any shares of capital stock of any class or
of any other rights; or
(iii) any capital reorganization of the
Corporation, reclassification of the capital stock of the
Corporation, consolidation or merger of the Corporation with
or into another corporation (other than a merger in which
the Corporation is the surviving corporation), or sale,
lease or conveyance of the assets of the Corporation as an
entirety or substantially as an entirety to another
corporation occurs; or
(iv) the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation occurs, the
Corporation shall cause to be mailed to the holders of
record of Class A Preferred Stock at least 15 days prior to
the applicable date hereinafter specified a notice stating
(x) the date on which a record is to be taken for the
purpose of such dividend, distribution of rights or, if a
record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined or (y) the date
on which such reorganization, reclassification,
consolidation, merger, sale, lease, conveyance, dissolution,
liquidation or winding up is expected to take place, and the
date, if any is to be fixed, as of which holders of Common
Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable
upon such reorganization, reclassification, consolidation,
merger, sale, lease, conveyance, dissolution, liquidation or
winding up. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such
dividend, distribution, reorganization, reclassification,
consolidation, merger, sale, lease, conveyance, dissolution,
liquidation or winding up.
6. VOTING RIGHTS. Other than as required by applicable
-------------
law, the Class A Preferred Stock shall not have any voting powers
either general or special, except that:
(a) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
affirmative vote or consent of the holders of at least 66-2/3% of
all of the shares of the Class A Preferred Stock, and any one or
more other series of preferred stock of the Corporation similarly
affected, at the time outstanding, given in person or by proxy,
either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of the Class A Preferred
Stock and any such other series of preferred stock shall vote
together as a separate class, shall be necessary for
Ex. A-29
34
authorizing, effecting or validating the amendment, alteration or
repeal of any of the provisions of the Restated Articles of
Incorporation, as amended, or of any amendment or supplement thereto
(including any certificate of designation or any similar document
relating to any series of preferred stock) of the Corporation, which
would adversely affect the preferences, rights, powers or privileges,
qualifications, limitations and restrictions of the Class A Preferred
Stock.
(b) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
affirmative vote or consent of the holders of at least 66-2/3% of
all of the shares of the Class A Preferred Stock and any other
series of preferred stock of the Corporation ranking on a parity
with shares of the Class A Preferred Stock, either as to
dividends or the distribution of assets upon liquidation,
dissolution or winding up, at the time outstanding, given in
person or by proxy, either in writing or by a vote at a meeting
called for the purpose at which the holders of shares of the
Class A Preferred Stock and any such other series of preferred
stock of the Corporation shall vote together as a single class
without regard to series, shall be necessary to create, authorize
or issue, or reclassify any authorized stock of the Corporation
into, or create, authorize or issue any obligation or security
convertible into or evidencing a right to purchase, any shares of
any class of stock of the Corporation ranking prior to the
Class A Preferred Stock or ranking prior to any other series of
preferred stock of the Corporation which ranks on a parity with
the Class A Preferred Stock as to dividends or upon the
distribution of assets upon liquidation, dissolution or winding
up. Subject to the foregoing, the Corporation's Restated
Articles of Incorporation, as amended, may be amended to increase
the number of authorized shares of preferred stock without the
vote of the holders of preferred stock, including the Class A
Preferred Stock.
(c) Whenever, at any time or times, dividends payable
on the shares of Class A Preferred Stock shall be in arrears in
an amount equal to at least six full quarterly dividends on
shares of the Class A Preferred Stock at the time outstanding,
the holders of the outstanding shares of Class A Preferred Stock
shall have the exclusive right, voting separately as a class
together with holders of shares of any one or more other series
of Preferred Stock ranking on a parity with the Class A Preferred
Stock either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable, to elect two
directors of the Corporation for one-year terms at the
Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. At elections for such
directors, each holder of Class A Preferred Stock shall be
entitled to one vote for each share held (the holders of shares
of any other series of preferred stock ranking on such a parity
being entitled to such number of votes, if any, for each share of
stock held as may be granted to them). Upon the vesting of such
right of the holders of Class A Preferred Stock, the maximum
authorized number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so
created shall be filled by vote of the holders of the outstanding
shares of Class A Preferred Stock (either alone or together with
the holders of shares of any one or more other series of
preferred stock ranking on such a parity) as hereinafter set
forth. The right of the holders of Class A Preferred Stock,
voting separately as a class to elect (either alone or together
with the holders of shares of any one or more other series of
preferred stock ranking on such a parity) members of the Board of
Directors of the Corporation as aforesaid shall continue until
such time as all dividends accumulated on the Class A Preferred
Stock shall have been paid in full or declared and set apart for
payment, at which time such right shall immediately terminate,
except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of
the character above mentioned.
Ex. A-30
35
(d) Upon termination of such special voting rights
attributable to all holders of the Class A Preferred Stock and
any other series or preferred stock ranking on a parity with the
Class A Preferred Stock as to dividends or the distribution of
assets upon liquidation, dissolution or winding up and upon which
like voting rights have been conferred and are exercisable, the
term of office of each director elected by the holders of shares
of Class A Preferred Stock and such parity preferred stock (a
"Preferred Stock Director") pursuant to such special voting
rights shall immediately terminate and the number of directors
constituting the entire Board of Directors shall be reduced by
the number of Preferred Stock Directors. Any Preferred Stock
Director may be removed by, and shall not be removed otherwise
than by, the vote of the holders of record of a majority of the
outstanding shares of Class A Preferred Stock and all other
series of preferred stock ranking on a parity with the Class A
Preferred Stock with respect to dividends who were entitled to
participate in such Preferred Stock Director's election, voting
as a separate class, at a meeting called for such purposes. If
the office of any Preferred Stock Director becomes vacant by
reason of death, resignation, retirement, disqualification,
removal from office, or otherwise, the remaining Preferred Stock
Director may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
7. REACQUIRED SHARES. Shares of Class A Preferred Stock
-----------------
converted, redeemed, or otherwise purchased or acquired by the
Corporation shall be restored to the status of authorized but
unissued shares of Class A Preferred Stock without designation as
to series.
8. RANKING. Any class or classes of stock of the
-------
Corporation shall be deemed to rank:
(i) prior to the Class A Preferred Stock, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class
shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders
of the Class A Preferred Stock;
(ii) on a parity with the Class A Preferred
Stock, as to dividends or as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those
of the Class A Preferred Stock, if the holders of such class
of stock and the Class A Preferred Stock shall be entitled
to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be,
in proportion to their respective amounts of accrued and
unpaid dividends per share or liquidation prices, without
preference or priority one over the other; and
(iii) junior to the Class A Preferred Stock, as to
dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such stock shall
be Common Stock or if the holders of Class A Preferred Stock
shall be entitled to receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders
of shares of such stock.
9. NO SINKING FUND. Shares of Class A Preferred Stock are
---------------
not subject to the operation of a sinking fund or other
obligation of the Corporation to redeem or retire the Class A
Preferred Stock.
FURTHER RESOLVED, that the officers of the Corporation, and
each of them, are hereby authorized, for and on behalf of and in
the name of the Corporation, to file a copy of the foregoing
Ex. A-31
36
resolution with the Secretary of State of the State of Kansas in
accordance with the provisions of Sections 17-6003 and 17-6401 of
the General Corporation Code of the State of Kansas.
IN WITNESS WHEREOF, FOURTH FINANCIAL CORPORATION, has caused
this Certificate of Designation to be signed by ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, its Chairman of the Board, and attested by ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, its Secretary, this 17th day of February, 1992.
FOURTH FINANCIAL CORPORATION
By --------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board
Attest: ------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
Ex. A-32
37
ACKNOWLEDGMENT
--------------
STATE OF KANSAS )
) ss.
SEDGWICK COUNTY )
BE IT REMEMBERED, that on this 17th day of February, 1992,
before me, a Notary Public within and for the County and State
aforesaid, came ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary, of Fourth Financial Corporation, a
Kansas corporation, who are personally known to me and known to
me to be the same persons who executed the foregoing Certificate
of Designation as Chairman of the Board and Secretary, and said
persons duly acknowledged to me their execution of the same as
and for their free and voluntary act and deed, for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my notarial seal at Wichita, Kansas, the day, month, and year
last above written.
----------------------------------------
Notary Public
My Appointment Expires:
--------------------------
Ex. A-33
38
EXHIBIT B
FORM OF DEPOSITARY RECEIPTS
---------------------------
Ex. A-34
39
NOT MORE THAN
---------------- --------------
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
DR EACH REPRESENTING 1/16 OF A SHARE OF
CLASS A CUMULATIVE CONVERTIBLE PREFERRED STOCK
---------------- $100 PAR VALUE
SEE REVERSE FOR CERTAIN DEFINITIONS DEPOSITARY SHARES
FOURTH FINANCIAL CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF KANSAS
THIS CERTIFICATE IS TRANSFERABLE IN NEW YORK, NEW YORK OR WICHITA, KANSAS
BANK IV Kansas, National Association, a national banking association,
duly organized and existing under the laws of the United States, as Depositary
(the "Depositary")
hereby certifies that
is the registered owner of
Depositary Shares ("Depositary Shares"), each Depositary Share
representing one one-sixteenth (1/16) of a share of Class A Cumulative
Convertible Preferred Stock, $100 par value (the "Stock"), of Fourth
Financial Corporation, a corporation duly organized and existing under
the laws of the State of Kansas (the "Company"). Subject to the terms
of a Deposit Agreement (the "Deposit Agreement") among the Depositary,
the Company and holders of receipts for Depositary Shares ("Receipts"),
each owner of a Depositary Share is entitled, proportionately, to all
the powers, preferences and rights and the qualifications, limitations
or restrictions of such preferences and/or rights of the Stock
represented thereby including dividends, voting, conversion, redemption
and liquidation rights as set forth in the Restated Articles of
Incorporation of the Company as amended and supplemented by the
Certificate of Designation (the "Certificate of Designation") fixing
the terms of Stock filed with the Secretary of State of the State of
Kansas.
The Depositary will furnish without charge to any registered owner
of Depositary Shares who so requests copies of the Restated Articles of
Incorporation of the Company, Deposit Agreement and Certificate of
Designation.
This Receipt shall not be valid or obligatory for any purpose, nor
shall the holder be entitled to any benefits under the Deposit
Agreement, unless this Receipt shall have been executed manually or by
facsimile, or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature
by the Depositary of a duly authorized officer thereof, and if executed
by facsimile signature of the Depositary, shall have been countersigned
manually by such Registrar by signature of a duly authorized officer
thereof.
BANK IV Kansas, National Association
Depositary, Transfer Agent and Registrar
-----------------------------------------------
Authorized Signature
Ex. A-35
40
The Depositary will furnish without charge to any registered owner of
Depositary Shares who so requests, copies of the Restated Articles of
Incorporation of the Company, Deposit Agreement and Certificate of
Designation. Any such request should be addressed to the Depositary.
The following abbreviations, when used in the inscription on the
face of this Receipt, shall be construed as though they were written
out in full according to applicable laws or regulations.
TEN COM - as tenants in common
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)
Additional abbreviations may also be used though not in the above list.
NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares
hereby irrevocably exercises the option to convert that number of
shares of Stock of the Company, represented by --------------- Depositary
Shares, into shares of common stock, $5.00 par value, of the Company
("Common Stock") in accordance with the terms of and subject to the
conditions of such Stock, including the Certificate of Designation in
respect thereof and the Deposit Agreement, and directs that the Common
Stock deliverable upon such conversion be registered in the name of and
delivered together with a check in payment for any fractional shares of
Common Stock to the undersigned unless a different name has been
indicated below. If the shares of Common Stock are to be registered in
the name of a person other than the undersigned, the undersigned will
pay all transfer and similar taxes payable with respect thereto. If
the number of shares of such Stock represented by the number of
Depositary Shares set forth above is less than the number of shares of
such Stock on deposit in respect of this Receipt, the undersigned
directs that the Depositary issue to the undersigned, unless a
different name is indicated below, a new Receipt evidencing Depositary
Shares for the balance of such Stock not be converted.
Dated:
---------------------------------
NAME:
----------------------------------
ADDRESS: Signature: ------------------------
------------------------------ Note: The signature in this Notice
(Please print name and address Conversion must correspond with the
of Registered Holder) name as written upon the face of
this Receipt in every particular,
without alteration or enlargement,
or any change whatever.
NAME:
----------------------------------
ADDRESS:
------------------------------
(Please indicate other delivery
instructions if applicable)
ASSIGNMENT
For value received, ------------------------------- the undersigned
hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------
--------------------------------------
-------------------------------------------------------------------------------
the within Receipt, and all rights and interests represented by the Depositary
Shares evidenced thereby, and hereby irrevocably constitutes and appoints
------------------------------------------------------------------, his
attorney, to transfer the said Depositary Shares on the books of the
within-named Depositary, with full power of substitution in the premises.
Dated:--------------------------------- Signature:------------------------
Note: The signature in this
Assignment must correspond with the
names as written upon the fact of
this Receipt in every particular,
without alteration or enlargement,
or change whatever.
Ex. A-36
41
EXHIBIT B
---------
FORM OF
CERTIFICATE OF DESIGNATION
OF
CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES A
OF
BOATMEN'S BANCSHARES, INC.
----------------------------------------------------
BOATMEN'S BANCSHARES, INC., a corporation organized and existing
under the laws of the State of Missouri (herein referred to as the
"Corporation"), in accordance with the provisions of Section 381.180 of
The General and Business Corporation Law of Missouri and Article III of
the Corporation's Restated Articles of Incorporation, does hereby
CERTIFY:
I. The Restated Articles of Incorporation of the Corporation fix
the total number of shares of all classes of capital stock which the
Corporation shall have the authority to issue as Two Hundred Ten
Million Three Hundred Thousand (210,300,000) shares, of which Ten
Million Three Hundred Thousand (10,300,000) shares shall be shares of
preferred stock without par value ("Preferred Stock") and Two Hundred
Million (200,000,000) shares shall be shares of common stock of the par
value of $1.00 per share ("Common Stock").
II. The Restated Articles of Incorporation of the Corporation
expressly grant to the Board of Directors of the Corporation the
authority to cause such shares of Preferred Stock to be issued from
time to time, by resolution adopted prior to such issue, fixing and
determining the designations, preferences, qualifications, limitations,
restrictions and special or relative rights applicable to such shares.
III. Pursuant to the authority conferred upon the Board of
Directors of the Corporation by the Restated Articles of Incorporation
of the Corporation, the Board of Directors, by actions duly taken on
November 14, 1995, authorized and adopted the following resolutions
providing for an issue of a series of its Preferred Stock to be
designated as the Cumulative Convertible Preferred Stock, Series A,
$100 stated value, of the Corporation:
BE IT RESOLVED, that the Board of Directors of Boatmen's
Bancshares, Inc. (the "Corporation"), in accordance with the provisions
of the Restated Articles of Incorporation of the Corporation, hereby
approves the issuance of a series of Cumulative Convertible Preferred
Stock, Series A, $100 stated value, of the Corporation and hereby fixes
and determines the designations, preferences, qualifications,
limitations, restrictions and special or relative rights thereof in
addition to those set forth in the Restated Articles of Incorporation
of the Corporation, as follows:
1. DESIGNATION. The designation of the series of Preferred
-----------
Stock created by this resolution shall be Cumulative Convertible
Preferred Stock, Series A, $100 stated value, of the Corporation
(hereinafter referred to as "Series A Preferred Stock"), and the number
of shares constituting such series shall be 250,000, which number may
be increased (but not above the total number of shares of Preferred
Stock of the Corporation then authorized by the Restated Articles of
Incorporation, as amended from time to time) or decreased (but not
below the number of shares then outstanding) from time to time by the
Board of Directors. The Series A Preferred Stock shall rank prior to
the Common Stock and the 7% Cumulative Redeemable Preferred Stock,
Series B, $100 stated value per share, and the Junior Participating
Preferred Stock, Series C, $1 stated value per share of the Corporation
with respect to the payment of dividends and the distribution of
assets.
Ex. B-1
42
2. DIVIDEND RIGHTS.
---------------
(a) The holders of shares of Series A Preferred Stock shall
be entitled to receive, when and as declared by the Board of Directors,
out of funds legally available therefor, cash dividends, accruing from
the date of initial issuance, at the annual rate of 7.00% of the
liquidation preference per annum, and no more, payable, when and as
declared by the Board of Directors, quarterly on March 1, June 1,
September 1, and December 1 of each year (each quarterly period ending
on any such date being hereinafter referred to as a "dividend period"),
commencing on the first March 1, June 1, September 1, or December 1 to
occur after the Issue Date (as hereafter defined), at such annual rate.
Each dividend will be payable to holders of record as they appear on
the stock books of the Corporation on such record dates as shall be
fixed by the Board of Directors of the Corporation. The date of
initial issuance of shares of Series A Preferred Stock is hereinafter
referred to as the "Issue Date". Dividends payable on the Series A
Preferred Stock (i) for any period other than a full dividend period
shall be computed on the basis of a 360-day year consisting of twelve
30-day months and (ii) for each full dividend period shall be computed
by dividing the annual dividend rate by four.
(b) Dividends on shares of Series A Preferred Stock shall be
cumulative from the Issue Date whether or not there shall be funds
legally available for the payment thereof. If there shall be
outstanding shares of any other series of Preferred Stock ranking
junior to or on a parity with the Series A Preferred Stock as to
dividends, no dividends shall be declared or paid or set apart for
payment on any such other series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set apart for
such payment on the Series A Preferred Stock for all dividend periods
terminating on or prior to the date of payment of such dividends. If
dividends on the Series A Preferred Stock and on any other series of
Preferred Stock ranking on a parity as to dividends with the Series A
Preferred Stock are in arrears, in making any dividend payment on
account of such arrears, the Corporation shall make payments ratably
upon all outstanding shares of the Series A Preferred Stock and shares
of such other series of Preferred Stock in proportion to the respective
amounts of dividends in arrears on the Series A Preferred Stock and on
such other series of Preferred Stock to the date of such dividend
payment. Holders of shares of the Series A Preferred Stock shall not
be entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends on such shares. No
interest or sum of money in lieu of interest shall be payable in
respect of any dividend payment or payments which may be in arrears.
(c) Unless full cumulative dividends on all outstanding
shares of the Series A Preferred Stock shall have been paid or declared
and set aside for payment for all past dividend periods, no dividend
(other than a dividend in Common Stock or in any other stock ranking
junior to the Series A Preferred Stock as to dividends and the
distribution of assets upon liquidation, dissolution or winding up)
shall be declared upon the Common Stock or upon any other stock ranking
junior to the Series A Preferred Stock as to dividends and the
distribution of assets upon liquidation, dissolution, or winding up,
nor shall any Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Series A Preferred Stock as
to dividends or upon the distribution of assets upon liquidation,
dissolution or winding up be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to the Series A Preferred Stock as to
dividends and the distribution of assets upon liquidation, dissolution
or winding up).
3. LIQUIDATION PREFERENCES.
-----------------------
(a) In the event of any liquidation, dissolution or winding
up of the affairs of the Corporation, whether voluntary or involuntary,
the holders of Series A Preferred Stock shall be entitled to receive
out of the assets of the Corporation available for distribution to
stockholders an amount equal to $400.00 per share plus an amount
Ex. B-2
43
equal to any accrued and unpaid dividends thereon to and including
the date of such distribution, and no more, before any distribution
shall be made to the holders of Common Stock or any other class of
stock of the Corporation ranking junior to the Series A Preferred
Stock as to the distribution of assets. After payment of such
liquidating distributions, the holders of shares of Series A
Preferred Stock will not be entitled to any further participation
in any distribution of assets by the Corporation.
(b) In the event the assets of the Corporation available for
distribution to stockholders upon any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full the amounts payable
with respect to the Series A Preferred Stock and any other shares of
Preferred Stock ranking on a parity with the Series A Preferred Stock
as to the distribution of assets, the holders of Series A Preferred
Stock and the holders of such other Preferred Stock shall share ratably
in any distribution of assets of the Corporation in proportion to the
full respective preferential amounts to which they are entitled.
(c) The merger or consolidation of the Corporation into or
with any other corporation, the merger or consolidation of any other
corporation into or with the Corporation or the sale of the assets of
the Corporation substantially as an entirety shall not be deemed a
liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Section 3.
4. REDEMPTION.
----------
(a) Subject to obtaining the prior approval of the Board of
Governors of the Federal Reserve System, the Corporation, at its
option, may redeem any or all shares of Series A Preferred Stock, at
any time or from time to time, on or after March 1, 1997 at a
redemption price of $400.00 per share, plus an amount equal to accrued
and unpaid dividends thereon to and including the date of redemption
(the "Redemption Price").
(b) If less than all the outstanding shares of Series A
Preferred Stock are to be redeemed, the shares to be redeemed shall be
selected pro rata as nearly as practicable or by lot, or by such other
method as the Board of Directors may determine to be fair and
appropriate.
(c) Notice of any redemption shall be given by first class
mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the date fixed for redemption to the holders of record of the
shares of Series A Preferred Stock to be redeemed, at their respective
addresses appearing on the books of the Corporation. Notice so mailed
shall be conclusively presumed to have been duly given whether or not
actually received. Such notice shall state: (i) the date fixed for
redemption; (ii) the Redemption Price; (iii) that the holder has the
right to convert such shares into Common Stock until the close of
business on the tenth day preceding the redemption date; (iv) the then-
effective conversion price and the place where certificates for such
shares may be surrendered for conversion; (v) the number of shares of
Series A Preferred Stock to be redeemed and if less than all the shares
held by such holder are to be redeemed, the number of such shares to be
so redeemed from such holder; (vi) the place where certificates for
such shares are to be surrendered for payment of the Redemption Price;
and (vii) that after such date fixed for redemption the shares to be
redeemed shall not accrue dividends. If such notice is mailed as
aforesaid, and if on or before the date fixed for redemption funds
sufficient to redeem the shares called for redemption are set aside by
the Corporation in trust for the account of the holders of the shares
to be redeemed, notwithstanding the fact that any certificate for
shares called for redemption shall not have been surrendered for
cancellation, on and after the redemption date the shares represented
thereby so called for redemption shall be deemed to be no longer
outstanding, dividends thereon shall cease to accrue and all rights of
the holders of such shares as stockholders of the Corporation shall
cease (except the right to receive the Redemption Price, without
interest, upon surrender of the certificate representing such shares).
Upon surrender in accordance with the aforesaid notice of the
certificate for any shares so redeemed (duly endorsed or accompanied by
appropriate instruments of
Ex. B-3
44
transfer, if so required by the Corporation in such notice), the
holders of record of such shares shall be entitled to receive the
Redemption Price, without interest. Notwithstanding the foregoing,
however, as and to the extent that the Corporation is required or
permitted under the abandoned property laws of any jurisdiction to
escheat any redemption funds held in trust for the benefit of any
holder, the Corporation shall be absolved of any further obligation
or liability to such holder to the full extent provided by any such
law. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(d) At the option of the Corporation, if notice of
redemption is mailed as aforesaid, and if prior to the date fixed for
redemption funds sufficient to pay in full the Redemption Price are
deposited in trust, for the account of the holders of the shares to be
redeemed, with a bank or trust company named in such notice doing
business in the State of Kansas, the State of Missouri or the Borough
of Manhattan, The City of New York, State of New York, and having
capital and surplus of at least $50 million (which bank or trust
company also may be the transfer agent and/or paying agent for the
Series A Preferred Stock) notwithstanding the fact that any
certificate(s) for shares called for redemption shall not have been
surrendered for cancellation, on and after such date of deposit the
shares represented thereby so called for redemption shall be deemed to
be no longer outstanding, and all rights of the holders of such shares
as shareholders of the Corporation shall cease, except the right of the
holders thereof to convert such shares in accordance with the
provisions of Section 5 at any time prior to the close of business on
the tenth day preceding the redemption date and the right of the
holders thereof to receive out of the funds so deposited in trust the
Redemption Price, without interest, upon surrender of the
certificate(s) representing such shares. Any funds so deposited with
such bank or trust company in respect of shares of Series A Preferred
Stock converted before the close of business on the tenth day preceding
the redemption date shall be returned to the Corporation upon such
conversion. Unless otherwise required by law, any funds so deposited
with such bank or trust company which shall remain unclaimed by the
holders of shares called for redemption at the end of two years after
the redemption date shall be repaid to the Corporation, on demand, and
thereafter the holder of any such shares shall look only to the
Corporation for the payment, without interest, of the Redemption Price.
Notwithstanding the foregoing, however, as and to the extent that the
Corporation is required or permitted under the abandoned property laws
of any jurisdiction to escheat any redemption funds held in trust for
the benefit of any holder, the Corporation shall be absolved of any
further obligation or liability to such holder to the full extent
provided by any such laws.
(e) Any provision of this Section 4 to the contrary
notwithstanding, in the event that any quarterly dividend payable on
the Series A Preferred Stock shall be in arrears and until all such
dividends in arrears shall have been paid or declared and set apart for
payment, the Corporation shall not redeem any shares of Series A
Preferred Stock unless all outstanding shares of Series A Preferred
Stock are simultaneously redeemed and shall not purchase or otherwise
acquire any shares of Series A Preferred Stock except in accordance
with a purchase or exchange offer made on the same terms to all holders
of record of Series A Preferred Stock for the purchase of all
outstanding shares thereof.
5. CONVERSION RIGHTS. The holders of shares of Series A
-----------------
Preferred Stock shall have the right, at their option, to convert such
shares into shares of Common Stock on the following terms and
conditions:
(a) Shares of Series A Preferred Stock shall be convertible
at any time into fully paid and nonassessable shares of Common Stock at
a conversion price of $29.00 per share of Common Stock (the "Conversion
Price"). For purposes of this Section 5, references to shares of
Series A Preferred Stock shall apply equally to fractional shares
thereof, but only to the extent that such fractional shares are
integral multiples of 1/16 of one share. The Conversion Price shall be
subject to adjustment from time to time as hereinafter provided. For
purposes of such conversion, each share of Series A Preferred Stock
will be valued at $400. No payment or adjustment shall be made on
account of any accrued and unpaid dividends on shares of Series A
Preferred Stock
Ex. B-4
45
surrendered for conversion prior to the record date for the
determination of stockholders entitled to such dividends or on
account of any dividends on the shares of Common Stock issued upon such
conversion subsequent to the record date for the determination of
stockholders entitled to such dividends. If any shares of Series A
Preferred Stock shall be called for redemption, the right to convert
the shares designated for redemption shall terminate at the close of
business on the tenth day preceding the date fixed for redemption
unless default is made in the payment of the Redemption Price. In the
event of default in the payment of the Redemption Price, the right to
convert the shares designated for redemption shall terminate at the
close of business on the business day immediately preceding the date
that such default is cured.
(b) In order to convert shares of Series A Preferred Stock
into Common Stock, the holder thereof shall surrender the certificates
therefor, duly endorsed if the Corporation shall so require, or
accompanied by appropriate instruments of transfer satisfactory to the
Corporation, at the office of the transfer agent for the Series A
Preferred Stock, or at such other office as may be designated by the
Corporation, together with written notice that such holder irrevocably
elects to convert such shares or any fraction of a share of Series A
Preferred Stock having a denominator of 16, each such fractional
interest, measured in 1/16 of a share, being valued for purposes of
conversion at $25; references in this Section 5 to the conversion of
any share of Series A Preferred Stock shall also apply, mutatis
-------
mutandis, to such fractional interests. Such notice shall also state
--------
the name and address in which such holder wishes the certificate for
the shares of Common Stock issuable upon conversion to be issued. As
soon as practicable after receipt of the certificates representing the
shares of Series A Preferred Stock to be converted and the notice of
election to convert the same, the Corporation shall issue and deliver
at said office a certificate for the number of whole shares of Common
Stock issuable upon conversion of the shares of Series A Preferred
Stock surrendered for conversion, together with a cash payment in lieu
of any fraction of a share, as hereinafter provided, to the person
entitled to receive the same. If more than one stock certificate for
Series A Preferred Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares represented by all the certificates so
surrendered. Shares of Series A Preferred Stock shall be deemed to
have been converted immediately prior to the close of business on the
date such shares are surrendered for conversion and notice of election
to convert the same is received by the Corporation in accordance with
the foregoing provision, and the person entitled to receive the Common
Stock issuable upon such conversion shall be deemed for all purposes as
the record holder of such Common Stock as of such date.
(c) In the case of any share of Series A Preferred Stock
which is converted after any record date with respect to the payment of
a dividend on the Series A Preferred Stock and on or prior to the date
on which such dividend is payable by the Corporation (the "Dividend Due
Date"), the dividend due on such Dividend Due Date shall be payable on
such Dividend Due Date to the holder of record of such shares as of
such preceding record date notwithstanding such conversion. Shares of
Series A Preferred Stock surrendered for conversion during the period
from the close of business on any record date with respect to the
payment of a dividend on the Series A Preferred Stock next preceding
any Dividend Due Date to the opening of business on such Dividend Due
Date shall (except in the case of shares of Series A Preferred Stock
which have been called for redemption on a redemption date within such
period) be accompanied by payment in New York Clearing House funds or
other funds acceptable to the Corporation of an amount equal to the
dividend payable on such Dividend Due Date on the shares of Series A
Preferred Stock being surrendered for conversion. The dividend with
respect to a share of Series A Preferred Stock called for redemption on
a redemption date during the period from the close of business on any
record date with respect to the payment of a dividend on the Series A
Preferred Stock next preceding any Dividend Due Date to the opening of
business on such Dividend Due Date shall be payable on such Dividend
Due Date to the holder of record of such share on such dividend record
date, notwithstanding the conversion of such share of Series A
Preferred Stock after such record date and prior to such Dividend Due
Date, and the holder converting such share of Series A Preferred Stock
called for redemption need not include a payment of such dividend
amount upon surrender of such
Ex. B-5
46
share of Series A Preferred Stock for conversion. Except as
provided in this subsection, no payment or adjustment shall be made
upon any conversion on account of any dividends accrued on shares
of Series A Preferred Stock surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon
conversion.
(d) No fractional shares of Common Stock shall be issued
upon conversion of any shares of Series A Preferred Stock. If more
than one share of Series A Preferred Stock is surrendered at one time
by the same holder, the number of full shares issuable upon conversion
thereof shall be computed on the basis of the aggregate number of
shares so surrendered. If the conversion of any shares of Series A
Preferred Stock results in a fractional share of Common Stock, the
Corporation shall pay cash in lieu thereof in an amount equal to such
fraction multiplied by the closing price, determined as provided in
subsection (vi) of Section 5(e) below, on the date on which the shares
of Series A Preferred Stock were duly surrendered for conversion, or if
such date is not a trading date, on the next succeeding trading date.
(e) The Conversion Price shall be adjusted from time to time
as follows:
(i) In case the Corporation shall pay or make a
dividend or other distribution on shares of Common Stock in Common
Stock, the Conversion Price in effect at the opening of business
on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price
by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding at the close of business on the date
fixed for such determination and the denominator shall be the sum
of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction
to become effective immediately after the opening of business on
the day following the date fixed for such determination. For
purposes of this subsection, the number of shares of Common Stock
at any time outstanding shall not include shares held in the
treasury of the Corporation but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Corporation will not pay any dividend
or make any distribution on shares of Common Stock held in the
treasury of the Corporation.
(ii) In case the Corporation shall issue additional
rights or warrants to all holders of its Common Stock entitling
them to subscribe for or purchase shares of Common Stock at a
price per share less than the then current market price per share
(determined as provided in subsection (vi) below) of the Common
Stock on the date fixed for the determination of stockholders
entitled to receive such rights or warrants (other than pursuant
to a dividend reinvestment plan), the Conversion Price in effect
at the opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of
Common Stock which the aggregate of the offering price of the
total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price
(determined as provided in subsection (vi) below) and the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered
for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this
subsection (ii), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Corporation but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common
Stock. The Corporation will not issue any rights or warrants in
respect of shares of Common Stock held in the treasury of the
Corporation during the period so held.
Ex. B-6
47
(iii) In case outstanding shares of Common Stock shall
be subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case
may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(iv) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its Common Stock evidences
of its indebtedness or assets (including securities, but excluding
(1) any rights or warrants referred to in subsection (ii) above,
(2) any dividend or distribution paid in cash out of the retained
earnings of the Corporation and (3) any dividend or distribution
referred to in subsection (i) above), the Conversion Price shall
be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to
the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction
of which the numerator shall be the current market price per share
(determined as provided in subsection (vi) below) of the Common
Stock on the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and shall be described in a
statement filed with the transfer agent for the Series A Preferred
Stock) of the portion of the evidences of indebtedness or assets
so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the
Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive
such distribution.
(v) For the purposes of this Section 5, the
reclassification of Common Stock into securities including
securities other than Common Stock (other than any
reclassification upon a consolidation or merger to which
Section 5(g) below applies) shall be deemed to involve (A) a
distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such
distribution" and the "date fixed for such determination" within
the meaning of subsection (iv) above), and (B) a subdivision or
combination, as the case may be, of the number of shares of Common
Stock outstanding immediately prior to such reclassification into
the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall
be deemed to be "the day upon which such subdivision became
effective" or "the day upon which such combination becomes
effective" as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning
of subsection (iii) above).
(vi) For the purpose of any computation under
subsections (ii) and (iv) above, the current market price per
share of Common Stock on any day shall be deemed to be the average
of the daily closing prices for the 30 consecutive trading days
commencing 45 trading days before the day in question. The
closing price for each day shall be the reported last sale price
or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asking prices, in either
case on the National Association of Securities Dealers Automated
Quotations National Market System or, if the Common Stock is no
longer quoted to trading on such system, on the principal national
securities exchange on which the Common Stock is then listed or
admitted to trading or, if the Common Stock is not quoted on such
National Market System or listed or admitted to trading on any
national securities exchange, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected from time to time by
the Board of Directors for that purpose.
Ex. B-7
48
(vii) Notwithstanding the foregoing, no adjustment in
the Conversion Price for the Series A Preferred Shares shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
-------- -------
adjustments which by reason of this subsection (vii) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Section shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
(f) Whenever the Conversion Price shall be adjusted as
herein provided (i) the Corporation shall forthwith make available at
the office of the transfer agent for the Series A Preferred Stock a
statement describing in reasonable detail the adjustment, the facts
requiring such adjustment and the method of calculation used; and
(ii) the Corporation shall cause to be mailed by first class mail,
postage prepaid, as soon as practicable to each holder of record of
shares of Series A Preferred Stock a notice stating that the Conversion
Price has been adjusted and setting forth the adjusted Conversion
Price.
(g) In the event of any consolidation of the Corporation
with or merger of the Corporation into any other corporation (other
than a merger in which the Corporation is the surviving corporation) or
a sale, lease or conveyance of the assets of the Corporation as an
entirety or substantially as an entirety, or any statutory exchange of
securities with another corporation, the holder of each share of
Series A Preferred Stock shall have the right, after such
consolidation, merger, sale or exchange to convert such share into the
number and kind of shares of stock or other securities and the amount
and kind of property which such holder would have been entitled to
receive upon such consolidation, merger, sale or exchange of the number
of shares of Common Stock that would have been issued to such holder
had such shares of Series A Preferred Stock been converted immediately
prior to such consolidation, merger or sale. The provisions of this
Section 5(g) shall similarly apply to successive consolidations,
mergers, sales or exchanges.
(h) The Corporation shall pay any taxes that may be payable
in respect of the issuance of shares of Common Stock upon conversion of
shares of Series A Preferred Stock, but the Corporation shall not be
required to pay any taxes which may be payable in respect of any
transfer involved in the issuance of shares of Common Stock in the name
other than that in which the shares of Series A Preferred Stock so
converted are registered, and the Corporation shall not be required to
issue or deliver any such shares unless and until the person requesting
such issuance shall have paid to the Corporation the amount of any such
taxes, or shall have established to the satisfaction of the Corporation
that such taxes have been paid.
(i) The Corporation may (but shall not be required to) make
such reductions in the Conversion Price, in addition to those required
by subsections (i) through (iv) of Section 5(e) above, as it considers
to be advisable in order that any event treated for federal income tax
purposes as a dividend of stock or stock rights shall not be taxable to
the recipients.
(j) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable upon the conversion of all
shares of Series A Preferred Stock then outstanding.
(k) In the event that:
(i) the Corporation shall declare a dividend or any
other distribution on its Common Stock, payable otherwise than in
cash out of retained earnings; or
Ex. B-8
49
(ii) the Corporation shall authorize the granting to
the holders of its Common Stock of rights to subscribe for or
purchase any shares of capital stock of any class or of any other
rights; or
(iii) any capital reorganization of the Corporation,
reclassification of the capital stock of the Corporation,
consolidation or merger of the Corporation with or into another
corporation (other than a merger in which the Corporation is the
surviving corporation), or sale, lease or conveyance of the assets
of the Corporation as an entirety or substantially as an entirety
to another corporation occurs; or
(iv) the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation occurs, the
Corporation shall cause to be mailed to the holders of record of
Series A Preferred Stock at least 15 days prior to the applicable
date hereinafter specified a notice stating (x) the date on which
a record is to be taken for the purpose of such dividend,
distribution of rights or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be
determined or (y) the date on which such reorganization,
reclassification, consolidation, merger, sale, lease, conveyance,
dissolution, liquidation or winding up is expected to take place,
and the date, if any is to be fixed, as of which holders of Common
Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger,
sale, lease, conveyance, dissolution, liquidation or winding up.
Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution,
reorganization, reclassification, consolidation, merger, sale,
lease, conveyance, dissolution, liquidation or winding up.
6. VOTING RIGHTS. Other than as required by applicable law, the
-------------
Series A Preferred Stock shall not have any voting powers either
general or special, except that:
(a) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative vote or
consent of the holders of at least 66-2/3% of all of the shares of the
Series A Preferred Stock, and any one or more other series of preferred
stock of the Corporation similarly affected, at the time outstanding,
given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of the
Series A Preferred Stock and any such other series of preferred stock
shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or
repeal of any of the provisions of the Restated Articles of
Incorporation, as amended, or of any amendment or supplement thereto
(including any certificate of designation or any similar document
relating to any series of preferred stock) of the Corporation, which
would adversely affect the preferences, rights, powers or privileges,
qualifications, limitations and restrictions of the Series A Preferred
Stock.
(b) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative vote or
consent of the holders of at least 66-2/3% of all of the shares of the
Series A Preferred Stock and any other series of preferred stock of the
Corporation ranking on a parity with shares of the Series A Preferred
Stock, either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up, at the time outstanding, given
in person or by proxy, either in writing or by a vote at a meeting
called for the purpose at which the holders of shares of the Series A
Preferred Stock and any such other series of preferred stock of the
Corporation shall vote together as a single class without regard to
series, shall be necessary to create, authorize or issue, or reclassify
any authorized stock of the Corporation into, or create, authorize or
issue any obligation or security convertible into or evidencing a right
to purchase, any shares of any class of stock of the Corporation
ranking prior to the Series A Preferred Stock or ranking prior to any
other series of preferred stock of the Corporation which ranks on a
parity with the Series A Preferred Stock as to dividends or upon the
distribution of assets upon liquidation, dissolution or winding up.
Subject to the foregoing, the Corporation's Restated Articles
Ex. B-9
50
of Incorporation, as amended, may be amended to increase the number of
authorized shares of preferred stock without the vote of the holders of
preferred stock, including the Series A Preferred Stock.
(c) Whenever, at any time or times, dividends payable on the
shares of Series A Preferred Stock shall be in arrears in an amount
equal to at least six full quarterly dividends on shares of the
Series A Preferred Stock at the time outstanding, the holders of the
outstanding shares of Series A Preferred Stock shall have the exclusive
right, voting separately as a class together with holders of shares of
any one or more other series of preferred stock ranking on a parity
with the Series A Preferred Stock either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up and
upon which like voting rights have been conferred and are exercisable,
to elect two directors of the Corporation for one-year terms at the
Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. At elections for such
directors, each holder of Series A Preferred Stock shall be entitled to
one vote for each share held (the holders of shares of any other series
of preferred stock ranking on such a parity being entitled to such
number of votes, if any, for each share of stock held as may be granted
to them). Upon the vesting of such right of the holders of Series A
Preferred Stock, the maximum authorized number of members of the Board
of Directors shall automatically be increased by two and the two
vacancies so created shall be filled by vote of the holders of the
outstanding shares of Series A Preferred Stock (either alone or
together with the holders of shares of any one or more other series of
preferred stock ranking on such a parity) as hereinafter set forth.
The right of the holders of Series A Preferred Stock, voting separately
as a class to elect (either alone or together with the holders of
shares of any one or more other series of preferred stock ranking on
such a parity) members of the Board of Directors of the Corporation as
aforesaid shall continue until such time as all dividends accumulated
on the Series A Preferred Stock shall have been paid in full or
declared and set apart for payment, at which time such right shall
immediately terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every subsequent default
of the character above mentioned.
(d) Upon termination of such special voting rights
attributable to all holders of the Series A Preferred Stock and any
other series or preferred stock ranking on a parity with the Series A
Preferred Stock as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable, the term of office of
each director elected by the holders of shares of Series A Preferred
Stock and such parity preferred stock (a "Preferred Stock Director")
pursuant to such special voting rights shall immediately terminate and
the number of directors constituting the entire Board of Directors
shall be reduced by the number of Preferred Stock Directors. Any
Preferred Stock Director may be removed by, and shall not be removed
otherwise than by, the vote of the holders of record of a majority of
the outstanding shares of Series A Preferred Stock and all other series
of preferred stock ranking on a parity with the Series A Preferred
Stock with respect to dividends who were entitled to participate in
such Preferred Stock Director's election, voting as a separate class,
at a meeting called for such purposes. If the office of any Preferred
Stock Director becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, or otherwise, the
remaining Preferred Stock Director may choose a successor who shall
hold office for the unexpired term in respect of which such vacancy
occurred.
7. REACQUIRED SHARES. Shares of Series A Preferred Stock
-----------------
converted, redeemed, or otherwise purchased or acquired by the
Corporation shall be restored to the status of authorized but unissued
shares of Series A Preferred Stock without designation as to series.
8. RANKING. Any class or classes of stock of the Corporation
-------
shall be deemed to rank:
(i) prior to the Series A Preferred Stock, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class shall be
entitled to the receipt of dividends
Ex. B-10
51
or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to
the holders of the Series A Preferred Stock;
(ii) on a parity with the Series A Preferred Stock, as
to dividends or as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per
share thereof be different from those of the Series A Preferred
Stock, if the holders of such class of stock and the Series A
Preferred Stock shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding
up, as the case may be, in proportion to their respective amounts
of accrued and unpaid dividends per share or liquidation prices,
without preference or priority one over the other; and
(iii) junior to the Series A Preferred Stock, as to
dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such stock shall be Common Stock or
if the holders of Series A Preferred Stock shall be entitled to
receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of shares of such stock.
9. NO SINKING FUND. Shares of Series A Preferred Stock are not
---------------
subject to the operation of a sinking fund or other obligation of the
Corporation to redeem or retire the Series A Preferred Stock.
FURTHER RESOLVED, that the officers of the Corporation, and each
of them, are hereby authorized, for and on behalf of and in the name of
the Corporation, to file a copy of the foregoing resolution with the
Secretary of State of the State of Missouri in accordance with the
provisions of Section 381.180 of The General and Business Corporation
Law of Missouri.
IN WITNESS WHEREOF, BOATMEN'S BANCSHARES, INC. has caused this
Certificate of Designation to be signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III, its
Chairman of the Board and Chief Executive Officer, and attested by
▇▇▇▇▇ ▇. ▇▇▇▇▇, its Secretary, this ---- day of January, 1996.
BOATMEN'S BANCSHARES, INC.
By:
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Chairman of the Board and
Chief Executive Officer
Attest: ------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary
Ex. B-11
52
ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
CITY OF ST. LOUIS )
I do hereby certify that on this ------- day of January, 1996,
before me, a Notary Public within and for the City and State aforesaid,
came ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III, Chairman of the Board and Chief Executive
Officer, and ▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary, of Boatmen's Bancshares, Inc.,
a Missouri corporation, who are personally known to me and known to me
to be the same persons who executed the foregoing Certificate of
Designation as Chairman of the Board and Chief Executive Officer and
Secretary, and said persons duly acknowledged to me their execution of
the same as and for their free and voluntary act and deed, for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
notarial seal at St. Louis, Missouri, the day, month, and year last
above written.
----------------------------------------
Notary Public
My Appointment Expires:
--------------------------
Ex. B-12
53
EXHIBIT C
---------
FORM OF
DEPOSITARY RECEIPTS
NUMBER
---------------------- -------------
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES DEPOSITARY
DR EACH REPRESENTING 1/16 OF A SHARE OF CUMULATIVE SHARES
CONVERTIBLE PREFERRED STOCK, SERIES A
---------------------- $100 STATED VALUE -------------
SEE REVERSE FOR
CERTAIN
DEFINITIONS
CUSIP
096650 40 3
BOATMEN'S BANCSHARES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MISSOURI
Boatmen's Trust Company, a corporation duly organized and existing under
the laws of the State of Missouri, as Depositary (the "Depositary")
hereby certifies that
is the registered owner of
Depositary Shares ("Depositary Shares"), each Depositary Share
representing one one-sixteenth (1/16) of a share of Class A Cumulative
Convertible Preferred Stock, Series A, $100 stated value (the "Stock"),
of Boatmen's Bancshares, Inc., a corporation duly organized and
existing under the laws of the State of Missouri (the "Corporation").
Subject to the terms of a Deposit Agreement (the "Deposit Agreement"),
as amended, among the Depositary, the Corporation and holders of
receipts for Depositary Shares ("Receipts"), each owner of a Depositary
Share is entitled, proportionately, to all the powers, preferences and
rights and the qualifications, limitations or restrictions of such
preferences and/or rights of the Stock represented thereby including
dividends, voting, conversion, redemption and liquidation rights as set
forth in the Restated Articles of Incorporation of the Corporation as
amended and supplemented by the Certificate of Designation (the
"Certificate of Designation") fixing the terms of Stock filed with the
Secretary of State of the State of Missouri.
The Depositary will furnish without charge to any registered owner
of Depositary Shares who so requests copies of the Restated Articles of
Incorporation of the Corporation, Deposit Agreement and Certificate of
Designation.
This Receipt shall not be valid or obligatory for any purpose, nor
shall the holder be entitled to any benefits under the Deposit
Agreement, unless this Receipt shall have been executed manually or by
facsimile, or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature
by the Depositary of a duly authorized officer thereof, and if executed
by facsimile signature of the Depositary, shall have been countersigned
manually by such Registrar by signature of a duly authorized officer
thereof.
BOATMEN'S TRUST COMPANY
Depositary, Transfer Agent and Registrar
-------------------------------------------------
Authorized Signature
Ex. C-1
54
The Depositary will furnish without charge to any registered owner of
Depositary Shares who so requests, copies of the Restated Articles of
Incorporation of the Corporation, Deposit Agreement and Certificate of
Designation. Any such request should be addressed to the Depositary.
The following abbreviations, when used in the inscription on the
face of this Receipt, shall be construed as though they were written
out in full according to applicable laws or regulations.
TEN COM - as tenants in common
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)
Additional abbreviations may also be used though not in the above list.
NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares
hereby irrevocably exercises the option to convert that number of
shares of Stock of the Corporation, represented by ----------------- Depositary
Shares, into shares of common stock, $1.00 par value, of the
Corporation ("Common Stock") in accordance with the terms of and
subject to the conditions of such Stock, including the Certificate of
Designation in respect thereof and the Deposit Agreement, and directs
that the Common Stock deliverable upon such conversion be registered in
the name of and delivered together with a check in payment for any
fractional shares of Common Stock to the undersigned unless a different
name has been indicated below. If the shares of Common Stock are to be
registered in the name of a person other than the undersigned, the
undersigned will pay all transfer and similar taxes payable with
respect thereto. If the number of shares of such Stock represented by
the number of Depositary Shares set forth above is less than the number
of shares of such Stock on deposit in respect of this Receipt, the
undersigned directs that the Depositary issue to the undersigned,
unless a different name is indicated below, a new Receipt evidencing
Depositary Shares for the balance of such Stock not being converted.
Dated: --------------------------------
NAME: ---------------------------------
ADDRESS: ------------------------------ Signature: -----------------------
(Please print name and address Note: The signature in this Notice
of Registered Holder) of Conversion must correspond with
the name as written upon the face
of this Receipt in every
particular, without alteration or
enlargement, or any change
whatever.
NAME: ---------------------------------
ADDRESS: ------------------------------
(Please indicate other delivery
instructions if applicable)
ASSIGNMENT
For value received, ------------------------------- the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
-------------------------------------------------------------------------------
the within Receipt, and all rights and interests represented by the Depositary
Shares evidenced thereby, and hereby irrevocably constitutes and appoints
------------------------------------------------------------------, his
attorney, to transfer the said Depositary Shares on the books of the
within-named Depositary, with full power of substitution in the premises.
Dated: -------------------------------- Signature: -----------------------
Note: The signature in this
Assignment must correspond with the
names as written upon the fact of
this Receipt in every particular,
without alteration or enlargement,
or change whatever.
EX. C-2