THIS DEPOSIT AGREEMENT dated as of May 20, 2008 (this
"Agreement"), among (i) BANK OF AMERICA CORPORATION, a Delaware
corporation (the "Corporation"), (ii) COMPUTERSHARE INC., a
Delaware corporation ("Computershare"), and COMPUTERSHARE TRUST
COMPANY, N.A., a national banking association and the wholly-owned
subsidiary of Computershare (the "Trust Company" and collectively
with Computershare, the "Depository"), and (iii) the Holders from
time to time of the Receipts described in this Agreement.
RECITALS
WHEREAS , the parties desire to provide, as set forth in
this Agreement, for the deposit of shares of the Corporation's
perpetual 8.20% Non-Cumulative Preferred Stock, Series H, $0.01 par
value, with a liquidation preference of $25,000 per share, from
time to time with the Depository for the purposes set forth in this
Agreement and for the issuance hereunder of Receipts (as defined
herein) evidencing Depositary Shares (as defined herein) in respect
of the Stock (as defined herein) so deposited; and
WHEREAS , the Receipts are to be substantially in the form
of Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions, as hereinafter provided in this
Agreement;
NOW , THEREFORE , in consideration of the premises,
the parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1.
Definitions.
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this
Agreement:
"Certificate" shall mean the Certificate of Designations filed with
the Secretary of State of the State of Delaware establishing the
Stock as a series of preferred stock of the Corporation.
"Corporation" shall mean Bank of America Corporation, a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Agreement, as amended or
supplemented from time to time in accordance with the terms
hereof.
"Depository" shall have the meaning set forth in the Preamble of
this Agreement.
"Depositary Shares" shall mean the depositary shares, each
representing one one-thousandth of a share of the Stock and
evidenced by a Receipt.
1
"Depository's Agent" shall mean an agent appointed by the
Depository pursuant to Section 5.1.
"Depository's Office" shall mean the principal office of the
Depository in New York, New York, at which at any particular time
its depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued
hereunder, substantially in the form set forth as Exhibit A
hereto, whether in definitive or temporary form, and evidencing the
number of Depositary Shares held of record by the Record Holder of
those Depositary Shares and shall include the DTC Receipt, as
defined in Section 2.2, where appropriate.
"Record Holder" or "Holder" as applied to a Receipt shall mean the
person in whose name that Receipt is registered on the books of the
Depository maintained for such purpose.
"Registrar" shall mean the Depository or such other successor bank
or trust company which shall be appointed by the Corporation to
register ownership and transfers of Receipts as herein provided,
and, if a successor Registrar shall be so appointed, references
herein to "the books" of or maintained by the Depository shall be
deemed, as applicable, to refer as well to the register maintained
by such successor Registrar for such purpose.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean the shares of the Corporation's 8.20%
Non-Cumulative Preferred Stock, Series H, $0.01 par value, with a
liquidation preference of $25,000 per share, designated in the
Certificate.
ARTICLE II
APPOINTMENT OF DEPOSITORY; BOOK-ENTRY SYSTEM; FORM
OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND
DELIVERY; TRANSFER, SURRENDER AND
REDEMPTION OF RECEIPTS
Section 2.1.
Appointment of Depository
The Corporation hereby appoints Computershare and Trust Company,
collectively, as depository for the Stock, and each of
Computershare and Trust Company hereby accepts such appointment as
depository for the Stock, on the terms and conditions set forth in
this Agreement.
Section 2.2.
Book-Entry System; Form and Transfer of Receipts.
The Corporation and the Depository shall make application to The
Depository Trust Company ("DTC") for acceptance of all of the
Receipts for its book-entry settlement system. The Corporation
hereby appoints the Depository acting through any authorized
officer thereof as its attorney-in-fact, with full power to
delegate, for purposes of executing any agreements, certifications
or other instruments or documents necessary or desirable in order
to effect the acceptance of such Receipts for DTC
eligibility. So long as the Receipts are eligible for
book-entry settlement with DTC, unless otherwise required by law,
all Depositary Shares with book-entry settlement through DTC shall
be represented by a single receipt (the "DTC Receipt"), which shall
be deposited with DTC (or its designee) evidencing all such
Depositary Shares and
2
registered in the name of the nominee of DTC (initially
expected to be Cede & Co.). The Depository or such other
entity as is agreed to by DTC may hold the DTC Receipt as custodian
for DTC. Ownership of beneficial interests in the DTC Receipt
shall be shown on, and the transfer of such ownership shall be
effected through, records maintained by (i) DTC or its nominee for
such DTC Receipt or (ii) institutions that have accounts with
DTC. The DTC Receipt shall bear such legend or legends as may
be required by DTC in order for it to accept the Depositary Shares
for its book-entry settlement system.
If DTC subsequently ceases to make its book-entry settlement system
available for the Receipts, the Corporation may instruct the
Depository regarding making other arrangements for book-entry
settlement. If the Receipts are not eligible for book-entry
form, the Depository shall provide written instructions to DTC to
deliver the DTC Receipt to the Depository for cancellation and the
Corporation shall instruct the Depository to deliver to the
beneficial owners of the Depositary Shares previously evidenced by
the DTC Receipt definitive Receipts in physical form evidencing
such Depositary Shares.
Beneficial owners of Depositary Shares through DTC will not be
entitled to receive Receipts in physical, certificated form or have
Depositary Shares registered in their name, except in the event DTC
ceases to make its book-entry settlement system available, as
described in the preceding paragraph.
Receipts shall be in denominations of any number of whole
Depositary Shares. The Corporation shall deliver to the Depository
from time to time such quantities of Receipts as the Depository may
request to enable the Depository to perform its obligations under
this Agreement.
The DTC Receipt and definitive Receipts, if any, shall be
substantially in the form set forth in Exhibit A annexed to
this Agreement and incorporated herein by reference, 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 New York Stock Exchange Inc. or
any other securities exchange on which the Depositary Shares are
then listed. In the event DTC ceases to make its book-entry
system of settlement available and the Corporation and the
Depository are unable to make other arrangements for book-entry
settlement, the Depository, pending preparation of definitive
Receipts and upon the written order of the Corporation, delivered
in compliance with Section 2.3, shall execute and deliver temporary
Receipts which may be printed, lithographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued,
the Corporation and the Depository will cause definitive Receipts
to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be
exchangeable by the Holder for definitive Receipts upon surrender
of the temporary Receipts at an office described in the first
paragraph of Section 2.3, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Receipts,
the Depository shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Corporation's
expense and without any charge therefor to the Holder or the
3
Depository. Until so exchanged, the temporary Receipts
shall in all respects be entitled to the same benefits under this
Agreement as definitive Receipts.
Receipts shall be executed by the Depository by the manual
signature of a duly authorized officer of the Depository; provided,
that such signature may be a facsimile if a Registrar for the
Receipts (other than the Depository) shall have been appointed and
such Receipts are countersigned by manual signature by a duly
authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Agreement or be valid or
obligatory for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depository or, if a
Registrar for the Receipts (other than the Depository) shall have
been appointed, by manual or facsimile signature of a duly
authorized officer of the Depository and countersigned by manual
signature by a duly authorized officer of such Registrar. The
Depository shall record on its books each Receipt so signed and
delivered as hereinafter provided.
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 Agreement all as may be required by the
Corporation or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of the New
York Stock Exchange Inc. or any other securities exchange upon
which the Stock, the Depositary Shares or the Receipts may be
listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of
transfer, shall be transferable by delivery with the same effect as
in the case of a negotiable instrument; provided, however, that
until transfer of any particular Receipt shall be registered on the
books of the Depository as provided in Section 2.4, the Depository
may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of
dividends or other distributions or to any notice provided for in
this Agreement and for all other purposes.
Section 2.3.
Deposit of Stock; Execution and Delivery of Receipts.
Subject to the terms and conditions of this Agreement, the
Corporation may from time to time deposit shares of Stock under
this Agreement by delivery to the Depository of a certificate or
certificates for such shares of Stock to be deposited, properly
endorsed or accompanied, if required by the Depository, by a duly
executed instrument of transfer or endorsement, in form
satisfactory to the Depository, together with (i) all such
certifications as may be required by the Depository in accordance
with the provisions of this Agreement, including the resolutions of
the Board of Directors of the Corporation or a committee of the
Board of Directors, as certified by the Secretary or any Assistant
Secretary of the Corporation on the date thereof as being complete,
accurate and in effect, relating to issuance and sale of the Stock,
(ii) a letter of counsel to the Corporation authorizing reliance on
such counsel's opinions delivered to the underwriters named therein
relating to (A) the existence and good standing of the Corporation,
(B) the due authorization of the Depositary Shares and the status
of the Depositary Shares as validly issued, fully paid and
non-assessable, and (C) the effectiveness of any registration
statement under the
4
Securities Act relating to the Depositary Shares, and (iii) a
written order of the Corporation, directing the Depository to
execute and deliver to, or upon the written order of, the person or
persons stated in such order a Receipt or Receipts for the number
of Depositary Shares representing such deposited Stock. Deposited
Stock shall be held by the Depository at the Depository's Office or
at such other place or places as the Depository shall
determine.
Upon receipt by the Depository of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section
2.3, together with the other documents required as above specified,
and upon recordation of the Stock on the books of the Corporation
(or its duly appointed transfer agent) in the name of the
Depository or its nominee, the Depository, subject to the terms and
conditions of this Agreement, shall execute and deliver to, or upon
the o