DEPOSIT AGREEMENT

 

EXHIBIT 4.16

 

DEPOSIT AGREEMENT

 

among

 

BANK OF AMERICA CORPORATION,

 

                    , As Depositary,

 

AND

 

THE HOLDERS FROM TIME TO TIME OF

THE DEPOSITARY RECEIPTS DESCRIBED HEREIN

 

Dated as of             , 20    

 

TABLE OF CONTENTS

 

 

i

TABLE OF CONTENTS

(continued)

 

 

 

ii

DEPOSIT AGREEMENT

dated as of             , 20    ,

among

BANK OF AMERICA CORPORATION,

a Delaware corporation,

 

                        , a                                                          ,

and the holders

from time to time of the Receipts

described herein.

 

WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of BANK OF AMERICA CORPORATION with the Depositary (as hereinafter defined) for the purposes set forth in this Deposit Agreement and for the issuance hereunder of Receipts (as hereinafter defined) evidencing Depositary Shares (as hereinafter defined), in respect of the Shares (as hereinafter defined) so deposited; and

 

WHEREAS, the Receipts are to be substantially in the form of Exhibit A attached hereto, with appropriate insertions, modifications, and omissions, as hereinafter provided in this Deposit Agreement;

 

NOW, THEREFORE, in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

Definitions

 

The following definitions for all purposes, unless otherwise indicated, shall apply to the respective terms used in this Deposit Agreement and the Receipts:

 

“Certificate of Designation” shall mean the Certificate of Designation filed with the Secretary of State of Delaware establishing the Shares as a series of preferred stock of the Company.

 

“Company” shall mean Bank of America Corporation, a Delaware corporation, and its successors.

 

“Deposit Agreement” shall mean this Deposit Agreement, as amended or supplemented from time to time.

 

“Depositary” shall mean                     , a                         , and any successor as Depositary hereunder.

 

“Depositary Shares” shall mean depositary shares, each representing [specify fraction] interest in a Share and evidenced by a Receipt.

 

“Depositary’s Agent” shall mean an agent appointed by the Depositary pursuant to Section 7.5.

 

“Depositary’s Office” shall mean the principal office of the Depositary in [The City of 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, whether in definitive or temporary form, substantially in the form set forth on Exhibit A attached hereto with appropriate insertions, modifications, and omissions as herein provided.

 

“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.

 

“Registrar” shall mean any bank or trust company which shall be appointed to register ownership and transfer of Receipts as herein provided.

 

“Shares” shall mean shares of the Company’s [insert designation of preferred stock].

 

ARTICLE II

 

Form of Receipts, Deposit of Shares, Execution and Delivery,

Transfer, Surrender, and Redemption of Receipts

 

Section 2.1. Form and Transfer of Receipts. Definitive Receipts may be typewritten, photocopied, engraved, printed, or lithographed on steel-engraved borders and shall be substantially in the form set forth in Exhibit A attached to this Deposit Agreement and incorporated herein by reference, with appropriate insertions, modifications, and omissions, as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Company or any holder of Shares, as the case may be, delivered in compliance with Section 2.2, shall execute and deliver temporary Receipts which are printed, lithographed, typewritten, photocopied, or otherwise substantially of the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions, and other variations as the persons executing such Receipts may determine, as evidenced by their execution of such Receipts. If temporary Receipts are issued, the Company and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at the office described in Section 2.2, without charge to the holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered temporary Receipt or Receipts. Such exchange shall be made at the Company’s expense and without any charge therefor. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits under this Agreement, and with respect to the Shares, as definitive Receipts.

 

Receipts shall be executed by the Depositary by the manual signature of a duly authorized officer of the Depositary; provided, however, that such signature may be a facsimile if a Registrar for the Receipts (other than the Depositary) shall have been appointed and such Receipts are counter-signed by manual signature of a duly authorized officer of the Registrar.

 

2

No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed manually by a duly authorized officer of the Depositary or, if a Registrar for the Receipts 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. The Depositary shall record on its books each Receipt so signed and delivered as hereinafter provided.

 

Receipts shall be in denominations of any number of whole Depositary Shares up to but not in excess of              Depositary Shares for any particular Receipt.

 

Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of th