Exhibit 3.1, 4.1
ARTICLES OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
ASSOCIATED BANC-CORP
These Articles of Amendment (the “
Articles of Amendment
”) to the Amended and Restated
Articles of Incorporation of Associated Banc-Corp, a corporation organized under Chapter 180 of the
Wisconsin Statutes (the “
Corporation
”), are executed by the undersigned for the purpose of
amending the Corporation’s Amended and Restated Articles of Incorporation. In accordance with the
provisions of Sections 180.0602 and 180.1002 of the Wisconsin Statutes, the amendment, set forth
below, to the Corporation’s Amended and Restated Articles of Incorporation was adopted by the Board
of Directors of the Corporation without shareholder approval, which was not required.
ARTICLE I
The name of the Corporation is Associated Banc-Corp.
ARTICLE II
The following Articles of Amendment constituting an amendment to the Corporation’s Amended and
Restated Articles of Incorporation were adopted by the directors of the Corporation by unanimous
written consent on September 1, 2011, in accordance with Section 180.0602 of the Wisconsin
Statutes:
The Amended and Restated Articles of Incorporation are amended by adding the language set
forth below to ARTICLE III of the Amended and Restated Articles of Incorporation. As of the date
of these Articles of Amendment, the Corporation has not issued any shares of the 8.00% Perpetual
Preferred Stock, Series B, par value $1.00 per share.
(9)
Designation of 8.00% Perpetual Preferred Stock, Series B
.
(a)
Series B Preferred Stock.
There shall be a series of the Preferred Stock with the
following terms, preferences, limitations, and relative rights, in addition to those otherwise
expressed in these Articles of Incorporation or any amendment thereto.
(i)
Designation.
The distinctive designation of such series is “8.00% Perpetual Preferred
Stock, Series B” (“
Series B Preferred Stock
”).
(ii)
Number of Shares
. The number of shares of Series B Preferred Stock shall be 65,000.
Such number may from time to time be increased (but not in excess of the total
number of authorized
shares of Preferred Stock that have not been designated as another series of Preferred Stock) or
decreased (but not below the number of shares of Series B Preferred Stock then outstanding) by the
Board of Directors.
(iii)
Definitions
. As used herein with respect to the Series B Preferred Stock:
“
Appropriate Federal Banking Agency
” means the “appropriate Federal banking agency”
with respect to the Corporation as defined in Section 3(q) of the Federal Deposit Insurance Act (12
U.S.C. Section 1813(q)), or any successor provision.
“
Business Day
” means each Monday, Tuesday, Wednesday, Thursday or Friday on which
banking institutions in the City of New York are not authorized or obligated by law, regulation or
executive order to close.
“
Cumulative Dividend Period
” means the period prior to the Non-Cumulative Dividend
Period.
“
Dividend Parity Stock
” has the meaning assigned to such term in Section
(iv)(A)(5)(b).
“
Dividend Payment Date
” has the meaning assigned to such term in Section (iv)(A)(1).
“
Dividend Period
” means each period commencing on (and including) a Dividend Payment
Date and continuing to (but not including) the next succeeding Dividend Payment Date (except that
the first Dividend Period (i) for the initial issuance of Series B Preferred Stock shall commence
upon (and include) the Issue Date and (ii) for Series B Preferred Stock issued after the Issue
Date, shall commence upon (and include) the applicable Start Date).
“
Dividend Rate
” means a rate per annum equal to 8.00%.
“
Issue Date
” means the initial date of delivery of shares of Series B Preferred Stock.
“
Junior Stock
” means the Common Stock and any other class or series of stock of the
Corporation hereafter authorized over which Series B Preferred Stock has preference in the payment
of dividends or in the distribution of assets on any liquidation, dissolution or winding up of the
Corporation.
“
Liquidation Event
” has the meaning assigned to such term in Section (vi)(A).
“
Non-Cumulative Dividend Period
” means the period commencing upon the effective date
of an amendment to the Articles of Incorporation permitting issuance of Preferred Stock that pays
non-cumulative dividends.
“
Optional Redemption
” has the meaning assigned to such term in Section (v)(A)(1).
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“
Person
” means any individual, corporation, partnership, joint venture, trust, limited
liability company or corporation, unincorporated organization or government or any agency or
political subdivision thereof.
“
Preferred Stock Directors
” has the meaning assigned to such term in Section
(vii)(B)(1).
“
Regulatory Capital Treatment Event
” means the good faith determination by the
Corporation that, as a result of (i) any amendment to, or change in, the laws or regulations of the
United States or any political subdivision of or in the United States that is enacted or becomes
effective after the initial issuance of any share of Series B Preferred Stock; (ii) any proposed
change in those laws or regulations that is announced after the initial issuance of any share of
Series B Preferred Stock; or (iii) any official administrative decision or judicial decision or
administrative action or other official pronouncement interpreting or applying those laws or
regulations that is announced after the initial issuance of any share of Series B Preferred Stock,
there is more than an insubstantial risk that the Corporation will not be entitled to treat the
full liquidation value of the shares of Series B Preferred Stock (assuming that the shares of
Series B Preferred Stock are non-cumulative whether or not the determination is made during the
Non-Cumulative Dividend Period) then outstanding as “Tier 1 Capital” (or its equivalent) for
purposes of the capital adequacy guidelines of the Board of Governors of the Federal Reserve
System, Regulation Y, 12 CFR 225 (or, as and if applicable, the capital adequacy guidelines or
regulations of any successor Appropriate Federal Banking Agency), as then in effect and applicable,
for as long as any share of Series B Preferred Stock is outstanding.
“
Regulatory Event Redemption
” has the meaning assigned to such term in Section
(v)(A)(2).
“
Start Date
” means, for each share of Series B Preferred Stock, (x) the Issue Date, if
such share was issued on the Issue Date, (y) if such share was not issued on the Issue Date, the
date of issue, if issued on a Dividend Payment Date, or (z) otherwise, the most recent Dividend
Payment Date preceding the date of issue of such share.
“
Voting Parity Stock
” has the meaning assigned to such term in Section (vii)(B)(1).
(iv)
Dividends
.
A.
General
.
(1)
Dividend Payment Dates, Dividend Rate, Etc.
Holders of Series B
Preferred Stock shall be entitled to receive, only when, as and if declared by the
Board of Directors, or a duly authorized committee of the Board of Directors, but
only out of funds legally available therefor, cash dividends computed in accordance
with Section (iv)(A)(3) and payable quarterly in arrears on the 15th day of each
March, June, September and December in each year (each such date a
“
Dividend Payment Date
”), commencing on December 15, 2011, to holders
of record on the 15
th
calendar day before such Dividend Payment Date or
such other record date not more than 60 nor less than 10 days preceding such
Dividend
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Payment Date fixed for that purpose by the Board of Directors or such
committee in advance of payment of each particular dividend. Notwithstanding any
other provision hereof, dividends on the Series B Preferred Stock shall not be
declared, paid or set aside for payment to the extent such act would cause the
Corporation to fail to comply with laws and regulations applicable thereto,
including applicable capital adequacy guidelines.
(2)
Business Day Convention
. If a Dividend Payment Date is not a
Business Day, the applicable dividend will be paid on the first Business Day
following that day without adjustment.
(3)
Dividend Computation
.
(a) The amount of the dividend computed per share of Series B Preferred
Stock on each Dividend Payment Date that occurs during the Cumulative
Dividend Period will be equal to (x) the sum of the amounts determined as
follows for each Dividend Period that has occurred since the Start Date for
that share of Series B Preferred Stock,
less
(y) the sum of all dividends
previously paid with respect to that share of Series B Preferred Stock:
Multiply the Dividend Rate by 0.25, and then multiply the result so obtained
by $1,000 (with the result of such calculation rounded upward if necessary
to the nearest .00001 of 1%); provided that, if the Dividend Period is
shorter than a full quarterly dividend period, multiply the result of that
calculation by a ratio the numerator of which is the sum of the calendar
days within each month encompassed by such Dividend Period (but not more
than 30 calendar days for any month) and the denominator of which is 90.
Any dividend payment actually made during the Cumulative Dividend Period on
shares of Series B Preferred Stock will first be credited against dividends
computed with respect to Dividend Periods for the shares of Series B
Preferred Stock for which dividends have not been paid in full, beginning
with the first such period. Dividends for any Dividend Period that ends
during the Cumulative Dividend Period that have not been paid on the regular
Dividend Payment Date may be declared and paid at any time during the
Cumulative Dividend Period, without reference to any Dividend Payment Date
for that Dividend Period, to holders of record of the Series B Preferred
Stock on such date as may be fixed by the Board of Directors or duly
authorized committee of the Board of Directors.
(b) The amount of the dividend computed per share of Series B Preferred
Stock on each Dividend Payment Date that occurs during the Non-Cumulative
Dividend Period will be equal to the Dividend Rate multiplied by 0.25, and
then multiplied by $1,000 (with the result of such calculation rounded
upward if necessary to the nearest .00001 of 1%);
provided that, if the Dividend Period is shorter than a full quarterly
dividend period, multiply the result of that calculation by a ratio the
numerator of which is the sum of the calendar days within each month
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encompassed by such Dividend Period (but not more than 30 calendar days for
any month) and the denominator of which is 90. During the Non-Cumulative
Dividend Period, dividends on shares of the Series B Preferred Stock shall
not be cumulative. To the extent that any dividends payable on the shares
of the Series B Preferred Stock on any Dividend Payment Date are not
declared and paid, in full or otherwise, on such Dividend Payment Date, then
such unpaid dividends shall not cumulate and shall cease to accrue and be
payable, and the Corporation shall have no obligation to pay, and the
holders of Series B Preferred Stock shall have no right to receive,
dividends accrued for such Dividend Period after the Dividend Payment Date
for such Dividend Period or interest with respect to such dividends, whether
or not dividends are declared for any subsequent Dividend Period with
respect to the Series B Preferred Stock.
(4)
Dividend Payment Dates for Other Preferred Stock
. For so long as
any shares of Series B Preferred Stock are outstanding, the Corporation shall not
issue any shares of Preferred Stock having any dividend payment date that is not
also a Dividend Payment Date for the Series B Preferred Stock.
(5)
Priority of Dividends
.
(a) So long as any of the shares of the Series B Preferred Stock are
outstanding, (1) no dividends (other than (a) dividends payable on Junior
Stock in Junior Stock and (b) cash in lieu of fractional shares in
connection with any such dividend) shall be paid or declared, in cash or
otherwise, nor shall any other distribution be made, on the Common Stock or
on any other Junior Stock and (2) the Corporation shall not purchase, redeem
or otherwise acquire for consideration any Junior Stock or shares of any
other series of Preferred Stock, unless, in either case (1) or (2), on the
payment date for such dividend, purchase, redemption, or other acquisition,
(a) the Corporation shall not be in default on its obligation to redeem any
of the shares of its Series B Preferred Stock called for redemption, (b) if
such payment date occurs during the Cumulative Dividend Period, dividends in
an amount computed in accordance with Section (iv)(A)(3)(a) for each share
of Series B Preferred Stock for all Dividend Periods through the Dividend
Payment Date for the then current Dividend Period have been paid or declared
and funds set aside therefor, and (c) if such payment date occurs during the
Non-Cumulative Dividend Period, dividends in an amount computed in
accordance with Section (iv)(A)(3)(b) for each share of Series B Preferred
Stock as of the Dividend Payment Date for the then current Dividend Period
have been paid or declared and funds set aside therefore.
(b) On any Dividend Payment Date during the Non-Cumulative Dividend
Period for which full dividends are not paid, or declared and funds set
aside therefor, on the Series B Preferred Stock and on any other class or
series of Preferred Stock of the Corporation ranking
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on a parity with Series
B Preferred Stock as to payment of dividends (any such class or series being
herein referred to as “
Dividend Parity Stock
”), all dividends paid
or declared for payment on that Dividend Payment Date with respect to the
Series B Preferred Stock and any Dividend Parity Stock shall be shared (1)
first ratably by the holders of such shares, if any, who have the right to
receive dividends with respect to dividend periods prior to the then current
Dividend Period (which shall not include the Series B Preferred Stock) but
for which such dividends were not declared and paid, in proportion to the
respective amounts of such undeclared or unpaid dividends relating to prior
Dividend Periods, and (2) thereafter by the holders of shares of Series B
Preferred Stock and Dividend Parity Stock on a
pro rata
basis.
(v)
Redemption
.
A.
Redemption
.
(1) Subject to the further terms and conditions provided herein, the
Corporation, at its option, subject to the approval of the Appropriate Federal
Banking Agency, may, upon notice given as provided in Section (v)(B), redeem shares
of the Series B Preferred Stock at the time outstanding in whole or in part, from
time to time, on any Dividend Payment Date on or after the Dividend Payment Date on
December 15, 2016 (“
Optional Redemption
”).
Notwithstanding the foregoing, within 90 days following the occurrence of a
Regulatory Capital Treatment Event, the Corporation, at its option, subject to the
approval of the Appropriate Federal Banking Agency, may redeem, at any time, all
(but not less than all) of the shares of Series B Preferred Stock at the time
outstanding, upon notice given as provided in Section (v)(B) below, at the
redemption price applicable on such date of redemption (“
Regulatory Event
Redemption
”).
(2) If the redemption date, whether as a result of an Optional Redemption or
Regulatory Event Redemption, occurs during the Cumulative Dividend Period, the
redemption price per share of Series B Preferred Stock shall be cash in an amount
equal to $1,000 plus an amount computed in accordance with Section (iv)(A)(3)(a) for
such share of Series B Preferred Stock for all Dividend Periods through the Dividend
Payment Date next following the redemption date; provided that, for purposes of such
computation, the dividend computed for the Dividend Period in which the redemption
date occurs shall be multiplied by a fraction, the numerator of which is the number
of days in such Dividend Period prior to the redemption date and the denominator of
which is the total number of days in such Dividend Period.
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(3)
Non-Cumulative Dividend Period Redemption
.
(a) If an Optional Redemption date occurs during the Non-Cumulative
Dividend Period, the redemption price per share of Series B Preferred Stock
shall be cash in an amount equal to $1,000 plus an amount equal to any
declared and unpaid dividends for any prior Dividend Periods to the
redemption date, without accumulation of any undeclared dividends.
(b) If a Regulatory Event Redemption date occurs during the
Non-Cumulative Dividend Period, the redemption price per share of Series B
Preferred Stock shall be cash in an amount equal to $1,000 plus an amount
equal to (i) any declared and unpaid dividends for any prior Dividend
Periods plus (ii) any accrued but unpaid and undeclared dividends for the
Dividend Period in which the redemption date occurs (if applicable)
multiplied by a fraction, the numerator of which is the number of days in
such Dividend Period prior to the redemption date, and the denominator of
which is the total number of days in such Dividend Period.
(4) The Series B Preferred Stock will not be subject to any sinking fund or
other obligation of the Corporation to redeem, repurchase or retire the Series B
Preferred Stock.
B.
Notice of Redemption
. Notice of every redemption of shares of Series B
Preferred Stock shall be mailed by first class mail, postage prepaid, addressed to the
holders of record of the shares to be redeemed at their respective last addresses appearing
on the books of the Corporation. Such mailing shall be at least 30 days and not more than
60 days before the date fixed for redemption. Any notice mailed as provided in this Section
(v)(B) shall be conclusively presumed to have been duly given, whether or not the holder
receives such notice, and failure duly to give such notice by mail, or any defect in such
notice or in the mailing thereof, to any holder of shares of Series B Preferred Stock
designated for redemption shall not affect the validity of the proceedings for the
redemption of any other shares of Series B Preferred Stock. Notwithstanding the foregoing,
if the Series B Preferred Stock or any depositary shares representing interests in the
Series B Preferred Stock are issued in book-entry form through The Depositary Trust Company
or any other similar facility, notice of redemption may be given to the holders of Series B
Preferred Stock at such time and in any manner permitted by such facility. Each notice
shall state (i) the redemption date; (ii) the number of shares of Series B Preferred Stock
to be redeemed and, if less than all the shares held by the holder are to be redeemed, the
number of shares to be redeemed from the holder; (iii) the redemption price; and (iv) the
place or places where the shares of Series B Preferred Stock are to be surrendered for
payment of the redemption price.
C.
Partial Redemption
. In case of any redemption of only part of the shares of
Series B Preferred Stock at the time outstanding, the shares to be redeemed shall be
selected either
pro rata
or by lot or in such other manner as the Board of Directors or a
duly authorized committee of the Board of Directors may determine to be fair and equitable.
Subject to the provisions hereof, the Board of Directors or such committee
shall have full power and authority to prescribe the terms and conditions upon which shares of Series B Preferred Stock shall be redeemed from time to time.
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D.
Effectiveness of Redemption
. If notice of redemption has been duly given
and if on or before the redemption date specified in the notice all funds necessary for the
redemption have been set aside by the Corporation, separate and apart from its other funds,
in trust for the
pro rata
benefit of the holders of the shares called for redemption, so as
to be and continue to be available therefor, then, notwithstanding that any certificate for
any share so called for redemption has not been surrendered for cancellation, on and after
the redemption date all shares so called for redemption shall cease to be outstanding and
all rights with respect to such shares shall forthwith on such redemption date cease and
terminate, except only the right of the holders thereof to receive the amount payable on
such redemption without interest. Any funds unclaimed at the end of three years from the
redemption date shall, to the extent permitted by law, be released to the Corporation, after
which time the holders of the shares so called for redemption shall look only to the
Corporation for payment of the redemption price of such shares.
(vi)
Liquidation Rights
.
A.
Liquidation
. In the event of any voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Corporation (each a “
Liquidation
Event
”), after payment or provision for payment of debts and other liabilities of the
Corporation and before any distribution to the holders of shares of Common Stock or any
other Junior Stock, the holders of Series B Preferred Stock shall be entitled to receive the
following out of the net assets of the Corporation, for each share of Series B Preferred
Stock: (1) if the Liquidation Event occurs during the Cumulative Dividend Period, an amount
equal to $1,000 plus an amount computed in accordance with Section (iv)(A)(3)(a) for such
share of Series B Preferred Stock for all Dividend Periods through the Dividend Payment Date
next following the date of the Liquidation Event; provided that, for purposes of such
computation, the dividend computed for the Dividend Period in which the Liquidation Event
occurs shall be multiplied by a fraction, the numerator of which is the number of days in
such Dividend Period prior to the date of the Liquidation Event and the denominator of which
is the total number of days in such Dividend Period; or (2) if the Liquidation Event occurs
during the Non-Cumulative Dividend Period, an amount equal to $1,000 plus an amount equal to
(i) any declared and unpaid dividends for any prior Dividend Periods plus (ii) any declared
and unpaid dividends for the Dividend Period in which the Liquidation Event occurs (if
applicable) multiplied by a fraction, the numerator of which is the number of days in such
Dividend Period prior to the date of the Liquidation Event, and the denominator of which is
the total number of days in such Dividend Period.
B.
Partial Payment
. If the assets of the Corporation are insufficient to
permit the payment of the full preferential amounts payable in connection with a Liquidation
Event to the holders of the Series B Preferred Stock and any other series of Preferred Stock
ranking on a parity with the Series B Preferred Stock as to the distribution of assets upon
a Liquidation Event, then the assets available for distribution to holders of shares of the
Series B Preferred Stock and each such other series of Preferred Stock as to the distribution of assets upon liquidation shall be distributed ratably to the holders of
shares of the Series B Preferred Stock and each such other series of Preferred Stock in proportion to the full preferential amounts payable on their respective shares upon the
Liquidation Event.
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C.
Merger, Consolidation and Sale of Assets Not Liquidation
. Neither the sale,
conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all the property and assets of the Corporation, the
consolidation or merger of the Corporation with or into any other entity, nor the merger or
consolidation of any other entity into or with the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this Section (vi).
(vii)
Voting Rights
.
A.
General
. The holders of Series B Preferred Stock shall not have any voting
rights except as set forth in this Section (vii) or as otherwise required by law.
B.
Right to Elect Two Directors Upon Non-Payment of Dividends
.
(1) If and whenever dividends on Series B Preferred Stock and any other class
or series of Preferred Stock of the Corporation ranking on a parity with Series B
Preferred Stock as to payment of dividends and having voting rights equivalent to
those provided in this Section (vii)(B) for the Series B Preferred Stock (any such
class or series being herein referred to as “
Voting Parity Stock
”) have not
been declared and paid in an aggregate amount, as to any such class or series, equal
to at least six quarterly dividends (whether or not consecutive) computed in
accordance with Section (iv)(A)(3) in the case of the Series B Preferred Stock, and
computed in accordance with the terms thereof in the case of any Voting Parity
Stock, the authorized number of directors then constituting the Board of Directors
shall be automatically increased by two and the holders of Series B Preferred Stock,
together with the holders of all other affected classes and series of Voting Parity
Stock similarly entitled to vote for the election of a total of two additional
directors, voting separately as a single class, shall be entitled to elect the two
additional members of the Corporation’s Board of Directors (the “
Preferred Stock
Directors
”) at any annual meeting of shareholders or any special meeting of the
holders of Series B Preferred Stock and such Voting Parity Stock for which dividends
have not been paid, called as hereinafter provided, but only if the election of any
Preferred Stock Directors would not cause the Corporation to violate the corporate
governance requirement of the New York Stock Exchange (or any other exchange on
which its securities may be listed) that listed companies must have a majority of
independent directors. The Board of Directors shall at no time have more than two
Preferred Stock Directors.
(2) At any time after the voting power provided for in this Section (vii) shall
have been vested in the holders of Series B Preferred Stock and any Voting Parity
Stock, the Secretary of the Corporation may, and upon the written request of holders
of record of at least 20% of the outstanding shares of Series B
Preferred Stock and any class or series of Voting Parity Stock (addressed to
the Secretary at the principal office of the Corporation) shall, call a special
meeting of
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the holders of shares of Series B Preferred Stock and such Voting Parity
Stock having such voting rights, for the election of the Preferred Stock Directors,
such call to be made by notice similar to that provided in the bylaws for a special
meeting of the shareholders or as required by law. If any such special meeting so
required to be called shall not be called by the Secretary within 20 days after
receipt of any such request, then any holder of shares of Series B Preferred Stock
may (at the Corporation’s expense) call such meeting, upon notice as herein
provided, and for that purpose shall have access to the shareholder records of the
Corporation. The Preferred Stock Directors elected at any such special meeting
shall hold office until the next annual meeting of the shareholders if such office
shall not have previously terminated as below provided. In case any vacancy shall
occur among the Preferred Stock Directors, a successor shall be elected by the Board
of Directors to serve until the next annual meeting of the shareholders upon the
nomination of the then remaining Preferred Stock Directors or, if no Preferred Stock
Director remains in office, by the vote of the holders of record of a majority of
the outstanding shares of Series B Preferred Stock and such Voting Parity Stock for
which dividends have not been paid, voting as a single class.
(3) Whenever either (a) during the Cumulative Dividend Period, all dividends on
the Series B Preferred Stock computed in accordance with Section (iv)(A)(3)(a) and
any other cumulative Voting Parity Stock have been paid in full, or (b) during the
Non-Cumulative Dividend Period, (i) all dividends on any cumulative Voting Parity
Stock have been paid in full, (ii) full dividends computed in accordance with
Section (iv)(A)(3)(b) have been paid on the applicable Dividend Payment Dates on the
Series B Preferred Stock for at least one year and (iii) full dividends on any
non-cumulative Voting Parity Stock then outstanding have been paid in accordance
with the terms thereof for at least one year, then the right of the holders of
Series B Preferred Stock and such Voting Parity Stock to elect such Preferred Stock
Directors shall cease (but subject always to the same provisions for the vesting of
such voting rights in the case of any similar non-payment of dividends in respect of
future Dividend Periods), and the terms of office of all Preferred Stock Directors
shall forthwith terminate and the number of directors constituting the Board of
Directors shall be reduced accordingly.
C.
Other Voting Rights
.
(1) So long as any shares of Series B Preferred Stock remain outstanding, the
Corporation shall not, without the affirmative vote of the holders of at least
two-thirds of the Series B Preferred Stock outstanding at the time (voting
separately as a class): (i) authorize or create, or increase the authorized or
issued amount of, any class or series of capital stock of the Corporation ranking
senior to the Series B Preferred Stock with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up, or reclassify
any authorized shares of capital stock of the Corporation into any such shares, or
(ii)
amend, alter or repeal the provisions of these Articles of Incorporation,
whether by merger, consolidation or otherwise, so as to materially and adversely
-10-
affect any right, preference, privilege or voting power of the Series B Preferred
Stock or the holders thereof; provided, however, that with respect to the occurrence
of any event set forth in clause (ii) above, so long as any shares of the Series B
Preferred Stock remain outstanding with the terms thereof materially unchanged or
new shares of the surviving corporation or entity are issued with the same terms as
the Series B Preferred Stock, in each case taking into account that upon the
occurrence of an event the Corporation may not be the surviving entity, the
occurrence of any such event shall not be deemed to materially and adversely affect
any right, preference, privilege or voting power of the Series B Preferred Stock or
the holders thereof, and provided, further, that (i) any increase in the amount of
the authorized Common Stock or Preferred Stock or the creation or issuance of any
Junior Stock or Preferred Stock ranking on a parity with the Series B Preferred
Stock with respect to payment of dividends (whether such dividends are cumulative or
non-cumulative) or distribution of assets upon liquidation, dissolution or winding
up, and (ii) any change to the number of directors or number of classes of
directors, shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
(2) On any matter on which the holders of the Series B Preferred Stock shall be
entitled to vote (as provided herein or by applicable law), including any action by
written consent, each share of Series B Preferred Stock shall have one vote per
share.
(3) The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall be
effected, all outstanding Series B Preferred Stock shall have been redeemed or
called for redemption upon proper notice and sufficient funds shall have been set
aside by the Corporation for the benefit of the holders of Series B Preferred Stock
to effect such redemption.
(viii)
Other Rights
. The shares of Series B Preferred Stock shall not have any voting powers,
preferences or relative, participating, optional or other special rights, or qualifications,
limitations or restrictions thereof, other than as set forth herein or in the Articles of
Incorporation.
(ix)
Additional Preferred Stock
. The Corporation may authorize and issue additional shares of
Junior Stock and on any other class or series of Preferred Stock of the Corporation ranking on a
parity with Series B Preferred Stock with respect to payment of dividends (whether such dividends
are cumulative or non-cumulative) or in the distribution of assets upon liquidation, dissolution or
winding up of the Corporation, without the consent of the holders of the Series B Preferred Stock.
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IN WITNESS WHEREOF, Associated Banc-Corp has caused these Articles of Amendment to be executed
and sealed by its duly authorized officer on this 12
th
day of September, 2011.
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ASSOCIATED BANC-CORP
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By:
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/s/ Brian R. Bodager
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Name:
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Brian R. Bodager
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Title:
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Executive Vice President,
General Counsel and
Corporate
Secretary
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-12-
Exhibit 4.2
DEPOSIT AGREEMENT
among
ASSOCIATED BANC-CORP,
as Issuer
WELLS FARGO BANK, N.A.,
as Depositary,
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of September 14, 2011
TABLE OF CONTENTS
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Page
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ARTICLE I
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Defined terms
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Section 1.1. Definitions
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1
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ARTICLE II
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Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
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Section 2.1. Form and Transfer of Receipts
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3
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Section 2.2. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof
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4
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Section 2.3. Registration of Transfer of Receipts
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5
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Section 2.4. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock
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5
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Section 2.5. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts
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6
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Section 2.6. Lost Receipts, etc.
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7
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Section 2.7. Cancellation and Destruction of Surrendered Receipts
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7
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Section 2.8. Redemption of Stock
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7
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Section 2.9. Receipts Issuable in Global Registered Form
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8
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ARTICLE III
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Certain Obligations of
Holders of Receipts and the Company
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Section 3.1. Filing Proofs, Certificates and Other Information
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10
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Section 3.2. Payment of Taxes or Other Governmental Charges
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10
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Section 3.3. Warranty as to Stock
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10
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Section 3.4. Warranty as to Receipts
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10
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-i-
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ARTICLE IV
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The Deposited Securities; Notices
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Section 4.1. Cash Distributions
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11
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Section 4.2. Distributions Other than Cash, Rights, Preferences or Privileges
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11
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Section 4.3. Subscription Rights, Preferences or Privileges
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12
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Section 4.4. Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts
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13
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Section 4.5. Voting Rights
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13
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Section 4.6. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc.
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14
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Section 4.7. Delivery of Reports
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14
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Section 4.8. Lists of Receipt Holders
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14
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ARTICLE V
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The Depositary, the Depositary’s
Agents, the Registrar and the Company
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Section 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar
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15
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Section 5.2. Prevention of or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Company
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15
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Section 5.3. Obligations of the Depositary, the
Depositary’s Agents, the Registrar and
the Company
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16
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Section 5.4. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary
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17
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Section 5.5. Corporate Notices and Reports
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18
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Section 5.6. Indemnification by the Company
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Section 5.7. Fees, Charges and Expenses
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19
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ARTICLE VI
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Amendment and Termination
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Section 6.1. Amendment
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Page
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Section 6.2. Termination
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20
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ARTICLE VII
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Miscellaneous
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Section 7.1. Counterparts
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21
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Section 7.2. Exclusive Benefit of Parties
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21
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Section 7.3. Invalidity of Provisions
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21
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Section 7.4. Notices
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21
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Section 7.5. Depositary’s Agents
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22
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Section 7.6. Appointment of Registrar and Transfer Agent in Respect of the Receipts
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22
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Section 7.7. Holders of Receipts Are Parties
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23
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Section 7.8. Governing Law
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23
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Section 7.9. Inspection of Deposit Agreement
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23
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Section 7.10. Headings
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23
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Exhibit A Form of Receipt
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A-1
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Exhibit B Calculation of Cash Dividends
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B-1
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Exhibit C Articles of Amendment
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C-1
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-iii-
DEPOSIT AGREEMENT dated as of September 14, 2011, among (i) ASSOCIATED BANC-CORP, a Wisconsin
corporation, (ii) Wells Fargo Bank, N.A., a national banking association formed under the laws of
the United States, and (iii) the holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the
deposit of shares of 8.00% Perpetual Preferred Stock, Series B, of the Company with the Depositary
for the purposes set forth in this Deposit Agreement and for the issuance hereunder of Depositary
Shares representing a fractional interest in the Stock deposited and for the execution and delivery
of Receipts evidencing Depositary Shares;
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 Deposit
Agreement; and
WHEREAS, the terms and conditions of the 8.00% Perpetual Preferred Stock, Series B, of the
Company are substantially set forth in the Articles of Amendment attached hereto as Exhibit C;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows:
ARTICLE I
Defined terms
Section 1.1.
Definitions
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The following definitions shall for all purposes, unless otherwise indicated, apply to the
respective terms (in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
“
Articles
” shall mean the Articles of Amendment filed with the Department of Financial
Institutions of the State of Wisconsin establishing the Stock as a series of preferred stock of the
Company, and setting forth the rights, preferences and privileges of the Stock, and attached hereto
as Exhibit C, and as such certificate may be amended or restated from time to time.
“
Company
” shall mean Associated Banc-Corp, a Wisconsin corporation, and its successors.
“
Deposit Agreement
” shall mean this agreement, as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof.
“
Depositary
” shall mean Wells Fargo Bank, N.A., a national banking association formed under
the laws of the United States and any successor as Depositary hereunder.
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“
Depositary Share Redemption Price
” shall have the meaning set forth in Section 2.8.
“
Depositary Shares
” shall mean the security representing a 1/40th fractional interest in a
share of the Stock, and the same proportionate interest in any and all other property received by
the Depositary in respect of such share of Stock and held under this Deposit Agreement, all as
evidenced by the Receipts issued hereunder. Subject to the terms of this Deposit Agreement, each
owner of a Depositary Share is entitled, proportionately, to all the rights, preferences and
privileges of the Stock represented by such Depositary Share (including the dividend, voting,
redemption and liquidation rights contained in the Articles of Amendment).
“
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, at which at any
particular time its depositary receipt business in respect of matters governed by this Deposit
Agreement shall be administered.
“
Exchange Event
” shall mean with respect to any Global Registered Receipt:
(1) (A) the Global Receipt Depository which is the holder of such Global Registered
Receipt or Receipts notifies the Company that it is no longer willing or able to properly
discharge its responsibilities under any Letter of Representations or that it is no longer
eligible or in good standing under the Securities Exchange Act of 1934, as amended, and (B)
the Company has not appointed a qualified successor Global Receipt Depository within ninety
(90) calendar days after the Company received such notice, or
(2) the Company in its sole discretion notifies the Depositary in writing that the
Receipts or portion thereof issued or issuable in the form of one or more Global Registered
Receipts shall no longer be represented by such Global Receipt or Receipts.
“
Global Receipt Depository
” shall mean, with respect to any Receipt issued hereunder, The
Depository Trust Company (“DTC”) or such other entity designated as Global Receipt Depository by
the Company in or pursuant to this Deposit Agreement, which Person must be, to the extent required
by any applicable law or regulation, a clearing agency registered under the Securities Exchange Act
of 1934, as amended.
“
Global Registered Receipts
” shall mean a global registered Receipt registered in the name of
a nominee of DTC.
“
Letter of Representations
” shall mean any applicable agreement among the Company, the
Depositary and a Global Receipt Depository with respect to such Global Receipt Depository’s rights
and obligations with respect to any Global Registered
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Receipts, as the same may be amended, supplemented, restated or otherwise modified from time
to time and any successor agreement thereto.
“
Preferred Stock Redemption Price
” shall have the meaning set forth in Section 2.8.
“
Receipt
” shall mean a receipt issued hereunder to evidence one or more Depositary Shares held
of record by the record holder of such Depositary Shares, whether in definitive or temporary form,
substantially in the form set forth as Exhibit A.
“
record holder
” or “
holder
” as applied to a Receipt shall mean the person in whose name a
Receipt is registered on the books of the Depositary maintained by the Depositary for such purpose.
“
Registrar
” shall mean the Depositary or such other bank or trust company which shall be
appointed by the Company to register ownership and transfers of Receipts as herein provided and if
a Registrar shall be so appointed, references herein to “the books” of or maintained by the
Depositary shall be deemed, as applicable, to refer as well to the register maintained by such
Registrar for such purpose.
“
Securities Act
” shall mean the Securities Act of 1933, as amended.
“
Stock
” shall mean shares of the Company’s 8.00% Perpetual Preferred Stock, Series B, $1,000
liquidation preference per share, $1.00 par value per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Section 2.1.
Form and Transfer of Receipts
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Definitive Receipts shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, in each case 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.
Receipts shall be executed by the Depositary by the manual signature of a duly authorized
officer of the Depositary; provided, that such signature may be a facsimile if a Registrar for the
Receipts (other than the Depositary) shall have been appointed and such Receipts are countersigned
by a duly authorized officer of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depositary or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by manual or facsimile signature of a duly
authorized officer of the Depositary
3
and countersigned 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. 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 all as may be
required by the Depositary and approved by the Company or required to comply with any applicable
law or any regulation thereunder or with the rules and regulations of any securities exchange upon
which the Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly endorsed or accompanied by
a properly executed instrument of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that until transfer of any particular
Receipt shall be registered on the books of the Depositary as provided in Section 2.3, the
Depositary may, notwithstanding any notice to the contrary, treat the record holder thereof at such
time as the absolute owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
Section 2.2.
Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof
.
Subject to the terms and conditions of this Deposit Agreement, the Company may from time to
time deposit shares of the Stock under this Deposit Agreement by delivery to the Depositary of (i)
a certificate or certificates for the Stock to be deposited, properly endorsed or accompanied, if
required by the Depositary, by a duly executed instrument of transfer or endorsement, or (ii) an
instruction letter from the Company authorizing the Depositary to register such shares of Stock in
book-entry form, each in form satisfactory to the Depositary, together with all such certifications
as may be required by the Depositary in accordance with the provisions of this Deposit Agreement
and all other information required to be set forth, and together with 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 evidencing in the aggregate the number
of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary’s Office or at such other
place or places as the Depositary shall determine. The Depositary shall not lend any Stock
deposited hereunder.
Upon receipt by the Depositary of (i) a certificate or certificates for Stock deposited in
accordance with the provisions of this Section or (ii) an instruction letter
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from Company in accordance with the provisions of this Section, together with the other
documents required as above specified, and upon recordation of the Stock on the books of the
Company (or its duly appointed transfer agent) in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver to or upon the order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or Receipts evidencing in
the aggregate the number of Depositary Shares representing the Stock so deposited and registered in
such name or names as may be requested by such person or persons. The Depositary shall execute and
deliver such Receipt or Receipts at the Depositary’s Office or such other offices, if any, as the
Depositary may designate. Delivery at other offices shall be at the risk and expense of the person
requesting such delivery.
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Section 2.3.
Registration of Transfer of Receipts
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Subject to the terms and conditions of this Deposit Agreement, the Depositary shall register
on its books from time to time transfers of Receipts upon any surrender thereof by the holder in
person or by duly authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer. Thereupon, the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the order of the person
entitled thereto.
The Depositary shall not be required (a) to issue, transfer or exchange any Receipts for a
period beginning at the opening of business fifteen days next preceding any selection of Depositary
Shares and Stock to be redeemed and ending at the close of business on the day of the mailing of
notice of redemption, or (b) to transfer or exchange for another Receipt any Receipt called or
being called for redemption in whole or in part except as provided in Section 2.8.
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Section 2.4.
Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal
of Stock
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Upon surrender of a Receipt or Receipts at the Depositary’s Office or at such other offices as
it may designate for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement, the Depositary shall
execute a new Receipt or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered, and shall deliver such new Receipt or Receipts to or upon the order of the holder of
the Receipt or Receipts so surrendered.
Any holder of a Receipt or Receipts may withdraw the number of whole shares of Stock and all
money and other property, if any, represented thereby by surrendering such Receipt or Receipts, at
the Depositary’s Office or at such other offices as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the
5
Depositary shall deliver to such holder, or to the person or persons designated by such holder
as hereinafter provided, the number of whole shares of Stock and all money and other property, if
any, represented by the Receipt or Receipts so surrendered for withdrawal, but holders of such
whole shares of Stock will not thereafter be entitled to deposit such Stock hereunder or to receive
a Receipt evidencing Depositary Shares therefor. If a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole shares of Stock to be so
withdrawn, the Depositary shall at the same time, in addition to such number of whole shares of
Stock and such money and other property, if any, to be so withdrawn, deliver to such holder, or
subject to Section 2.3 upon such holder’s order, a new Receipt evidencing such excess number of
Depositary Shares.
Except as provided in Section 6.2, in no event will fractional shares of Stock (or any cash
payment in lieu thereof) be delivered by the Depositary. Delivery of the Stock and money and other
property, if any, being withdrawn may be made by the delivery of such certificates, documents of
title and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property, if any, being withdrawn are to be delivered to
a person or persons other than the record holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the Depositary a written order so
directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by
such holder for withdrawal of such shares of Stock be properly endorsed in blank or accompanied by
a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any, represented by Receipts
surrendered for withdrawal shall be made by the Depositary at the Depositary’s Office, except that,
at the request, risk and expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place as may be designated
by such holder.
Section 2.5.
Limitations on Execution and Delivery, Transfer, Surrender and Exchange of
Receipts
.
As a condition precedent to the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary’s Agents
or the Company may require payment to it of a sum sufficient for the payment (or, in the event that
the Depositary or the Company shall have made such payment, the reimbursement to it) of any charges
or expenses payable by the holder of a Receipt pursuant to Section 5.7, may require the production
of evidence satisfactory to it as to the identity and genuineness of any signature and may also
require compliance with such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement and/or applicable law.
6
The deposit of Stock may be refused, the delivery of Receipts against Stock may be suspended,
the registration of transfer of Receipts may be refused and the registration of transfer, surrender
or exchange of outstanding Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary’s Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or commission or under
any provision of this Deposit Agreement.
Section 2.6.
Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary in its
discretion may execute and deliver a Receipt of like form and tenor in exchange and substitution
for such mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or stolen
Receipt, upon (i) the filing by the holder thereof with the Depositary of evidence satisfactory to
the Depositary of such destruction or loss or theft of such Receipt, of the authenticity thereof
and of such holder’s ownership thereof and (ii) the holder thereof furnishing of the Depositary
with reasonable indemnification satisfactory to the Depositary.
Section 2.7.
Cancellation and Destruction of Surrendered Receipts
.
All Receipts surrendered to the Depositary or any Depositary’s Agent shall be cancelled by the
Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized and
directed to destroy all Receipts so cancelled.
Section 2.8.
Redemption of Stock
.
Whenever the Company shall be permitted and shall elect to redeem shares of Stock in
accordance with the provisions of the Articles (including on account of a Regulatory Capital
Treatment Event, as described therein), it shall (unless otherwise agreed to in writing with the
Depositary) give or cause to be given to the Depositary, not less than 45 days and not more than 75
days prior to the Redemption Date (as defined below), notice of the date of such proposed
redemption of Stock and of the number of such shares held by the Depositary to be so redeemed and
the applicable Depositary Share Redemption Price (as defined below), which notice shall be
accompanied by a certificate from the Company stating that such redemption of Stock is in
accordance with the provisions of the Articles. On the date of such redemption, provided that the
Company shall then have paid or caused to be paid in full to the Depositary the redemption price
per share of Stock to be redeemed, plus an amount equal to any accrued and unpaid dividends thereon
to the date fixed for redemption, in accordance with and as required by the provisions of the
Articles (the “
Preferred Stock Redemption Price
”), the Depositary shall redeem the number of
Depositary Shares representing such Stock. The Depositary shall mail notice of the Company’s
redemption of Stock and the proposed simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed by first-class mail, postage prepaid, not less than 30 days
and not more than
7
60 days prior to the date fixed for redemption of such Stock and Depositary Shares (the
“
Redemption Date
”), to the record holders of the Receipts evidencing the Depositary Shares to be so
redeemed at the addresses of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice of redemption of Depositary Shares to one or more such
holders nor any defect in any notice of redemption of Depositary Shares to one or more such holders
shall affect the sufficiency of the proceedings for redemption as to the other holders. Each such
notice shall be prepared by the Company and shall state: (i) the Redemption Date; (ii) the number
of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such
holder are to be redeemed, the number of such Depositary Shares held by such holder to be so
redeemed; (iii) the Depositary Share Redemption Price; and (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the Depositary Share Redemption
Price. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by the Depositary by lot,
pro rata
(as nearly as may
be), or in any other manner as determined by the Depositary in its sole discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after the Redemption Date
(unless the Company shall have failed to provide the funds necessary to redeem the Stock evidenced
by the Depositary Shares called for redemption) (i) all shares of Stock called for redemption shall
cease to be outstanding and any rights with respect to such shares shall cease and terminate
(except for the right to receive the Preferred Stock Redemption Price without interest), (ii) the
Depositary Shares being redeemed from such proceeds shall cease to be outstanding and all rights of
the holders of Receipts evidencing such Depositary Shares shall, to the extent of such Depositary
Shares, cease and terminate (except the right to receive the Depositary Share Redemption Price
without interest), and (iii) upon surrender in accordance with such redemption notice of the
Receipts evidencing any such Depositary Shares called for redemption (properly endorsed or assigned
for transfer, if the Depositary or applicable law shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share (the “
Depositary Share
Redemption Price
”) equal to one-fortieth of the Preferred Stock Redemption Price per share of Stock
so redeemed plus all money and other property, if any, represented by such Depositary Shares.
If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption,
the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary,
together with the redemption payment, a new Receipt evidencing the Depositary Shares evidenced by
such prior Receipt and not called for redemption.
Section 2.9.
Receipts Issuable in Global Registered Form
.
If the Company shall determine in a writing delivered to the Depositary that the Receipts are
to be issued in whole or in part in the form of one or more Global Registered Receipts, then the
Depositary shall, in accordance with the other provisions of this Deposit Agreement, execute and
deliver one or more Global Registered Receipts evidencing such Receipts, which (i) shall represent,
and shall be denominated in an
8
amount equal to the aggregate principal amount of, the Receipts to be represented by such
Global Registered Receipt or Receipts, (ii) shall be registered in the name of the Global Receipt
Depository therefor or its nominee.
Notwithstanding any other provision of this Deposit Agreement to the contrary, unless
otherwise provided in the Global Registered Receipt, a Global Registered Receipt may only be
transferred in whole and only by the applicable Global Receipt Depository for such Global
Registered Receipt to a nominee of such Global Receipt Depository, or by a nominee of such Global
Receipt Depository to such Global Receipt Depository or another nominee of such Global Receipt
Depository, or by such Global Receipt Depository or any such nominee to a successor Global Receipt
Depository for such Global Registered Receipt selected or approved by the Company or to a nominee
of such successor Global Receipt Depository. Except as provided below, owners solely of beneficial
interests in a Global Registered Receipt shall not be entitled to receive physical delivery of the
Receipts represented by such Global Registered Receipt. Neither any such beneficial owner nor any
direct or indirect participant of a Global Receipt Depository shall have any rights under this
Deposit Agreement with respect to any Global Registered Receipt held on their behalf by a Global
Receipt Depository and such Global Receipt Depository may be treated by the Company, the Depositary
and any director, officer, employee or agent of the Company or the Depositary as the holder of such
Global Registered Receipt for all purposes whatsoever.
Unless and until definitive Receipts are delivered to the owners of the beneficial interests
in a Global Registered Receipt, (1) the applicable Global Receipt Depository will make book-entry
transfers among its participants and receive and transmit all payments and distributions in respect
of the Global Registered Receipts to such participants, in each case, in accordance with its
applicable procedures and arrangements, and (2) whenever any notice, payment or other communication
to the holders of Global Registered Receipts is required under this Deposit Agreement, the Company
and the Depositary shall give all such notices, payments and communications specified herein to be
given to such holders to the applicable Global Receipt Depository.
If an Exchange Event has occurred with respect to any Global Registered Receipt, then, in any
such event, the Depositary shall, upon receipt of a written order from the Company for the
execution and delivery of individual definitive registered Receipts in exchange for such Global
Registered Receipt, shall execute and deliver, individual definitive registered Receipts, in
authorized denominations and of like tenor and terms in an aggregate principal amount equal to the
principal amount of the Global Registered Receipt surrendered in exchange for such Global
Registered Receipt.
Definitive registered Receipts issued in exchange for a Global Registered Receipt pursuant to
this Section shall be registered in such names and in such authorized denominations as the Global
Receipt Depository for such Global Registered Receipt, pursuant to instructions from its
participants, shall instruct the Depositary in writing. The Depositary shall deliver such Receipts
to the persons in whose names such Receipts are so registered.
9
Notwithstanding anything to the contrary in this Deposit Agreement, should the Company
determine that the Receipts should be issued as a Global Registered Receipt, the parties hereto
shall comply with the terms of each Letter of Representations.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
Section 3.1.
Filing Proofs, Certificates and Other Information
.
Any holder of a Receipt may be required from time to time to file such proof of residence, or
other matters or other information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration of transfer or
redemption, of any Receipt or the withdrawal of the 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 until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
Section 3.2.
Payment of Taxes or Other Governmental Charges
.
Holders of Receipts shall be obligated to make payments to the Depositary of certain charges
and expenses, as provided in Section 5.7. Registration of transfer of any Receipt or any withdrawal
of 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 or other
distributions may be withheld or any part of or all the Stock or other property represented by the
Depositary Shares evidenced by such Receipt and not theretofore sold may be sold for the account of
the holder thereof (after attempting by reasonable means to notify such holder prior to such sale),
and such dividends 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 3.3.
Warranty as to Stock
.
The Company hereby represents and warrants that the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable (subject to 12 U.S.C. § 55). Such
representation and warranty shall survive the deposit of the Stock and the issuance of Receipts.
Section 3.4.
Warranty as to Receipts
.
The Company hereby represents and warrants that the Receipts, when issued, will represent
legal and valid interests in the Stock. Such representation and warranty shall survive the deposit
of the Stock and the issuance of Receipts.
10
ARTICLE IV
The Deposited Securities; Notices
Section 4.1.
Cash Distributions
.
Whenever the Depositary shall receive any cash dividend or other cash distribution on Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.4 such amounts of such dividend or distribution as are,
as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by
the Receipts held by such holders; provided, however, that in case the Company or the Depositary
shall be required to withhold and shall withhold from any cash dividend or other cash distribution
in respect of the Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributable shall be held by the Depositary (without liability for
interest thereon) and shall be added to and be treated as part of the next sum received by the
Depositary for distribution to record holders of Receipts then outstanding. Each holder of a
Receipt shall provide the Depositary with its certified tax identification number on a properly
completed Form W-8 or W-9, as may be applicable. Each holder of a Receipt acknowledges that, in the
event of non-compliance with the preceding sentence, the Internal Revenue Code of 1986, as amended,
may require withholding by the Depositary of a portion of any of the distributions to be made
hereunder.
Section 4.2.
Distributions Other than Cash, Rights, Preferences or Privileges
.
Whenever the Depositary shall receive any distribution other than cash, rights, preferences or
privileges upon Stock, the Depositary shall, at the direction of the Company, subject to Sections
3.1 and 3.2, distribute to record holders of Receipts on the record date fixed pursuant to Section
4.4 such amounts of the securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Company 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 in accordance with the direction of the Company, or if for any other
reason (including any requirement that the Company or the Depositary withhold an amount on account
of taxes) the Depositary deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution, including the sale (at
public or private sale) of the securities or property thus received, or any part thereof, in a
commercially reasonable manner. The net proceeds of any such sale shall, subject to Sections 3.1
and 3.2, be distributed or made available for distribution, as the case may be, by the Depositary
to record holders of
11
Receipts as provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities or property to the Depositary and the
Depositary shall not make any distribution of such securities or property to the holders of
Receipts unless the Company shall have provided an opinion of counsel stating that such securities
or property have been registered under the Securities Act or do not need to be registered in
connection with such distributions.
Section 4.3.
Subscription Rights, Preferences or Privileges
.
If the Company shall at any time offer or cause to be offered to the persons in whose names
Stock is recorded on the books of the Company any rights, preferences or privileges to subscribe
for or to purchase any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts in such manner as the Company shall instruct the
Depositary in writing, either by the issue to such record holders of warrants representing such
rights, preferences or privileges or by such other method as may be approved by the Company;
provided, however, that (i) if at the time of issue or offer of any such rights, preferences or
privileges the Depositary determines that it is not lawful or (after consultation with the Company)
not feasible to make such rights, preferences or privileges available to holders of Receipts by the
issue of warrants or otherwise, or (ii) if and to the extent so instructed by holders of Receipts
who do not desire to exercise such rights, preferences or privileges, then the Depositary, in its
discretion (with 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, subject to Sections 3.1 and 3.2, be
distributed by the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.1 in the case of a distribution received in cash.
The Company shall notify the Depositary whether registration under the Securities Act of the
securities to which any rights, preferences or privileges relate is required in order for holders
of Receipts to be offered or sold the securities to which such rights, preferences or privileges
relate, and 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 reasonable best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless and until such
registration statement shall have become effective, or the Company shall have provided to the
Depositary an opinion of counsel to the effect that the offering and sale of such securities to
such holders are exempt from registration under the provisions of the Securities Act.
12
The Company shall notify the Depositary whether 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, and
the Company agrees with the Depositary that the Company will use its reasonable best efforts to
take such action or obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
Section 4.4.
Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts
.
Whenever any cash dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or if rights, preferences or privileges shall at any time be
offered, with respect to Stock, or whenever the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are entitled to notice, or
whenever 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, or otherwise in accordance with the terms of, the Stock, as identified in
a written notice to the Depositary of such record date) 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.
Section 4.5.
Voting Rights
.
Upon receipt of notice of any meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders of Receipts a
notice prepared by the Company which shall contain (i) such information as is contained in such
notice of meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights pertaining to the
amount of Stock represented by their respective Depositary Shares (including an express indication
that instructions may be given to the Depositary to give a discretionary proxy to a person
designated by the Company) and a brief statement as to the manner in which such instructions may be
given. Upon the written request of the holders of Receipts on the relevant record date, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted, in accordance with
the instructions set forth in such requests, the maximum number of whole shares of Stock
represented by the Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all reasonable action which may be
deemed necessary by the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of authorization from the holder of a Receipt, the
Depositary will abstain from voting (but shall appear at any meeting with respect to the Stock
unless directed to the contrary by the record holders of
13
all the related Receipts) to the extent of the shares of Stock (or portion thereof)
represented by the applicable Depositary Shares evidenced by such Receipt.
Section 4.6.
Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc.
Upon any change in par or stated value, split-up, combination or any other reclassification of
the Stock, or upon any recapitalization, reorganization, merger or consolidation affecting the
Company or to which it is a party, the Depositary may in its discretion with the approval of, and
shall upon the instructions of, the Company, and (in either case) in such manner as the Depositary
may deem equitable, (i) make such adjustments as are certified by the Company in the fraction of an
interest represented by one Depositary Share in one share of Stock and in the ratio of the
Depositary Share Redemption Price to the Preferred Stock Redemption Price, in each case as may be
necessary fully to reflect the effects of such change in par or stated value, split-up, combination
or other reclassification of Stock, or of such recapitalization, reorganization, merger or
consolidation and (ii) treat any securities which shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new deposited securities so received in
exchange for or upon conversion or in respect of such Stock. In any such case the Depositary may in
its discretion, with the approval of the Company, execute and deliver additional Receipts or may
call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities. Anything to the contrary herein notwithstanding, holders
of Receipts shall have the right from and after the effective date of any such change in par or
stated value, split-up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger or consolidation to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Stock represented thereby only
into or for, as the case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such Receipts might have been converted or
for which such Stock might have been exchanged or surrendered immediately prior to the effective
date of such transaction.
Section 4.7.
Delivery of Reports
.
The Depositary shall furnish to holders of Receipts any reports and communications received
from the Company which are received by the Depositary and which the Company is required to furnish
to the holders of the Stock.
Section 4.8.
Lists of Receipt Holders
.
Promptly upon request from time to time by the Company, the Depositary shall furnish to it a
list, as of the most recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts.
14
ARTICLE V
The Depositary, the Depositary’s
Agents, the Registrar and the Company
Section 5.1.
Maintenance of Offices, Agencies and Transfer Books by the Depositary;
Registrar
.
Upon execution of this Deposit Agreement, the Depositary shall maintain at the Depositary’s
Office, facilities for the execution and delivery, registration and registration of transfer,
surrender and exchange of Receipts, and at the offices of the Depositary’s Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of Receipts, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary’s Office for the registration and
registration of transfer, surrender and exchange of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts; provided that any such holder
requesting to exercise such right shall certify to the Depositary that such inspection shall be for
a proper purpose reasonably related to such person’s interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time, when deemed expedient
by it in connection with the performance of its duties hereunder.
The Depositary may, with the approval of the Company, appoint a Registrar for registration of
the Receipts or the Depositary Shares evidenced thereby. If the Receipts or the Depositary Shares
evidenced thereby or the Stock represented by such Depositary Shares shall be listed on one or more
national stock exchanges, the Depositary will appoint a Registrar (acceptable to the Company) 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 any
such exchange) may be removed and a substitute Registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts, such Depositary Shares or such Stock
are listed on one or more other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Stock as may be required by
law or applicable stock exchange regulation.
Section 5.2.
Prevention of or Delay in Performance by the Depositary, the Depositary’s
Agents, the Registrar or the Company
.
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision of any present or
future law, or regulation thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, the Depositary’s Agent or the Registrar, by reason of
any provision, present or future, of the Company’s Amended and Restated Articles of Incorporation,
as amended (including the
15
Articles), or by reason of any act of God or war or other circumstance beyond the control of
the relevant party, the Depositary, the Depositary’s Agent, the Registrar or the Company shall be
prevented or forbidden from, or subjected to any penalty on account of, doing or performing any act
or thing which the terms of this Deposit Agreement provide shall be done or performed; nor shall
the Depositary, any Depositary’s Agent, any Registrar or the Company incur liability to any holder
of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which the terms of this Deposit Agreement shall provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement except as otherwise explicitly set forth in this Deposit Agreement.
Section 5.3.
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the
Company
.
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company assumes
any obligation or shall be subject to any liability under this Deposit Agreement to holders of
Receipts other than for its negligence, willful misconduct or bad faith. Notwithstanding anything
in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor
any Registrar nor the Company shall be liable in any event for special, punitive, incidental,
indirect or consequential losses or damages of any kind whatsoever (including but not limited to
lost profits).
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company shall be
under, any obligation to appear in, prosecute or defend any action, suit or other proceeding in
respect of the Stock, the Depositary Shares or the Receipts which in its opinion may involve it in
expense or liability unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Company shall be
liable for any action or any failure to act by it in reliance upon the written advice of legal
counsel or accountants, or information from any person presenting Stock for deposit, any holder of
a Receipt or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary’s Agent, any Registrar and the Company may each rely
and shall each be protected in acting upon or omitting to act upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
The Depositary will indemnify the Company against any liability which may directly arise out
of acts performed or omitted by the Depositary due to its gross negligence, willful misconduct or
bad faith, however, in on event shall the Depositary be liable for consequential, special or
indirect damages of any kind regardless of whether the Depositary is put on notice of the
possibility of such damages. The Depositary shall not be liable for the acts or omissions due to
the gross negligence, willful misconduct or bad faith of any Depositary’s Agent, so long as such
Depositary’s Agent was appointed with due care.
16
The Depositary shall not be responsible for any failure to carry out any instruction to vote
any of the shares of Stock or for the manner or effect of any such vote made, as long as any such
action or non-action is not taken in bad faith. The Depositary undertakes, and any Registrar shall
be required to undertake, to perform such duties and only such duties as are specifically set forth
in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit
Agreement against the Depositary or any Registrar.
The Depositary, the Depositary’s Agents, and any Registrar 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.
The Depositary shall not be under any liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the
Depositary Shares or the Stock nor shall it be obligated to segregate such monies from other monies
held by it, except as required by law. The Depositary shall not be responsible for advancing funds
on behalf of the Company and shall have no duty or obligation to make any payments if it has not
timely received sufficient funds to make timely payments.
In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any
notice, instruction, direction, request or other communication, paper or document received by the
Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement,
the Depositary shall deem it necessary or desirable that a matter be proved or established prior to
taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole
discretion upon written notice to the Company, refrain from taking any action and shall be fully
protected and shall not be liable in any way to the Company, any holders of Receipts or any other
person or entity for refraining from taking such action, unless the Depositary receives written
instructions or a certificate signed by the Company which eliminates such ambiguity or uncertainty
to the satisfaction of the Depositary or which proves or establishes the applicable matter to the
satisfaction of the Depositary. The Depositary shall not be liable to the Company, any holder of
Receipts, or any action taken by it in accordance with the written instruction of the Company or
the holders of Receipts.
Section 5.4.
Resignation and Removal of the Depositary; Appointment of Successor
Depositary
.
The Depositary may at any time resign as Depositary hereunder by delivering notice of its
election to do so to the Company, such resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such removal delivered
to the Depositary, such removal to take effect upon the appointment of
17
a successor Depositary hereunder 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. If no successor Depositary shall have been so appointed and have accepted appointment
within 60 days after delivery of such notice, the resigning or removed Depositary may petition any
court of competent jurisdiction for the appointment of a successor Depositary. Every successor
Depositary shall execute and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary, without any further
act or deed, shall become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the Company, shall
promptly execute and deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts and such records, books and
other information in its possession relating thereto. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any entity 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, and notice thereof shall not be required hereunder. Such successor Depositary may authenticate
the Receipts in the name of the predecessor Depositary or in the name of the successor Depositary.
Section 5.5.
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 addresses
recorded in the Depositary’s books, copies of all notices and reports (including without limitation
financial statements) required by law, by the rules of any national securities exchange upon which
the Stock, the Depositary Shares or the Receipts are listed or by the Company’s Amended and
Restated Articles of Incorporation, as amended (including the Articles), to be furnished to the
record holders of Receipts. Such transmission will be at the Company’s expense and the Company will
provide the Depositary with such number of copies of such documents as the Depositary may
reasonably request. In addition, the Depositary will transmit to the record holders of Receipts at
the Company’s expense such other documents as may be requested by the Company.
18
Section 5.6.
Indemnification by the Company
.
Notwithstanding Section 5.3 to the contrary, the Company shall indemnify the Depositary, any
Depositary’s Agent and any Registrar (including each of their officers, directors, agents and
employees) against, and hold each of them harmless from, any loss, damage, cost, penalty, liability
or expense (including the reasonable costs and expenses of defending itself) which may arise out of
acts performed, suffered or omitted to be taken in connection with this Deposit Agreement and the
Receipts by the Depositary, any Registrar or any of their respective agents (including any
Depositary’s Agent) and any transactions or documents contemplated hereby, except for any liability
arising out of negligence, willful misconduct or bad faith on the respective parts of any such
person or persons. The obligations of the Company set forth in this Section 5.6 shall survive any
succession of any Depositary, Registrar or Depositary’s Agent.
Section 5.7.
Fees, Charges and Expenses
.
The Company agrees promptly to pay the Depositary the compensation to be agreed upon with the
Company for all services rendered by the Depositary hereunder and to reimburse the Depositary for
its reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by
the Depositary without negligence, willful misconduct or bad faith on its part (or on the part of
any Depositary’s Agent) in connection with the services rendered by it (or such Depositary’s Agent)
hereunder. The Company shall pay all charges of the Depositary in connection with the initial
deposit of the Stock and the initial issuance of the Depositary Shares, all withdrawals of shares
of the Stock by owners of Depositary Shares, and any redemption or exchange of the Stock at the
option of the Company. The Company shall pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. All other transfer and other
taxes and governmental charges shall be at the expense of holders of Depositary Shares evidenced by
Receipts. If, at the request of a holder of Receipts, the Depositary incurs charges or expenses for
which the Company is not otherwise liable hereunder, such holder will be liable for such charges
and expenses; provided, however, that the Depositary may, at its sole option, require a holder of a
Receipt to prepay the Depositary any charge or expense the Depositary has been asked to incur at
the request of such holder of Receipts. The Depositary shall present its statement for charges and
expenses to the Company at such intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
Section 6.1.
Amendment
.
The form of the Receipts and any provisions of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable; provided,
19
however, that no such amendment which shall materially and adversely alter the rights of the
holders of Receipts shall be effective unless such amendment shall have been approved by the
holders of at least a majority (or, in the case of amendments relating to or affecting rights to
receive dividends or distributions or voting or redemption rights, two-thirds of the holders) of
the Depositary Shares then outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Depositary Agreement as amended thereby. In no event
shall any amendment impair the right, subject to the provisions of Sections 2.5 and 2.6 and Article
III, of any owner of Depositary Shares to surrender any Receipt evidencing such Depositary Shares
to the Depositary with instructions to deliver to the holder the Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory provisions of
applicable law or the rules and regulations of any governmental body, agency or commission, or
applicable stock exchange.
Section 6.2.
Termination
.
This Deposit Agreement may be terminated by the Company at any time upon not less than 60 days
prior written notice to the Depositary, in which case, at least 30 days prior to the date fixed in
such notice for such termination, the Depositary will mail notice of such termination to the record
holders of all Receipts then outstanding.
If any Receipts shall remain outstanding after the date of termination of this Deposit
Agreement, the Depositary thereafter shall discontinue the transfer of Receipts, shall suspend the
distribution of dividends to the holders thereof and shall not give any further notices (other than
notice of such termination) or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions pertaining to Stock,
shall sell rights, preferences or privileges as provided in this Deposit Agreement and shall
deliver the number of whole or fractional shares of Stock and any money and other property, if any,
represented by Receipts upon surrender thereof by the holders thereof. At any time after the
expiration of two years from the date of termination, the Depositary may sell Stock then held
hereunder at public or private sale, at such places and upon such terms as it deems proper and may
thereafter hold the net proceeds of any such sale, together with any money and other property held
by it hereunder, without liability for interest, for the benefit, pro rata in accordance with their
holdings, of the holders of Receipts that have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under this Deposit Agreement except
to account for such net proceeds and money and other property, and its obligations to the Company
under Section 5.3.
This Deposit Agreement will terminate automatically if (i) all outstanding Depositary Shares
have been redeemed pursuant to Section 2.8 or (ii) there shall have been made a final distribution
in respect of the Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of Depositary Shares
pursuant to Section 4.1 or 4.2, as applicable.
20
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, any
Depositary’s Agent and any Registrar under Sections 5.6 and 5.7.
ARTICLE VII
Miscellaneous
Section 7.1.
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. Delivery of an executed counterpart of a signature page to this
Deposit Agreement by facsimile or electronic mail shall be effective as delivery of a manually
executed counterpart of this Deposit Agreement.
Section 7.2.
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 7.3.
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 7.4.
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, facsimile transmission or electronic mail confirmed by letter, addressed to the Company
at
Associated Banc-Corp
1200 Hansen Road
Green Bay, Wisconsin 54304
Attention: General Counsel
Facsimile No.: (920) 491-7106
or at any other addresses of which the Company shall have notified the Depositary in writing.
21
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
facsimile transmission confirmed by letter, addressed to the Depositary at the Depositary’s Office
at
Wells Fargo Bank, N.A.
161 North Concord Exchange
South St. Paul, MN 55075
Attention: Associated Banc-Corp Account Manager
Facsimile No.: (651) 450-4078
or at any other address of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or
sent by mail or facsimile transmission 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 timely 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 facsimile transmission 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 facsimile transmission) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any facsimile transmission received by it from the
other or from any holder of a Receipt, notwithstanding that such facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
Section 7.5.
Depositary’s Agents
.
The Depositary may from time to time appoint Depositary’s Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time appoint additional
Depositary’s Agents and vary or terminate the appointment of such Depositary’s Agents. The
Depositary will promptly notify the Company of any such action.
Section 7.6.
Appointment of Registrar and Transfer Agent in Respect of the Receipts
.
The Company hereby appoints the Depositary as Registrar and Transfer Agent in respect of the
Receipts and the Depositary hereby accepts such appointments.
22
Section 7.7.
Holders of Receipts Are Parties
.
The holders of Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery
thereof.
Section 7.8.
Governing Law
.
This Deposit Agreement and the Receipts and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, and construed in accordance with, the laws of the State of
New York.
Section 7.9.
Inspection of Deposit Agreement
.
Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary’s
Agents and shall be open to inspection during business hours at the Depositary’s Office and the
respective offices of the Depositary’s Agents, if any, by any holder of a Receipt.
Section 7.10.
Headings
.
The headings of articles and sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
23
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this Deposit 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.
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ASSOCIATED BANC-CORP
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By:
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/s/
Christopher Del Moral-Niles
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Name:
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Christopher Del Moral-Niles
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Title Executive Vice President
and
Deputy
Chief Financial Officer
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WELLS FARGO BANK, N.A.
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By:
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/s/
Steven J. Hoffman
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Name:
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Steven J. Hoffman
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Title Vice President
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24
EXHIBIT
A
[FORM OF FACE OF RECEIPT]
DEPOSITARY SHARES
DR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH
REPRESENTING 1/40TH OF ONE SHARE OF 8.00% PERPETUAL PREFERRED
STOCK, SERIES B,
OF
ASSOCIATED BANC-CORP
INCORPORATED UNDER THE LAWS OF THE STATE OF WISCONSIN
CUSIP 045488 202
SEE REVERSE FOR CERTAIN DEFINITIONS
Wells Fargo Bank, N.A., as Depositary (the “Depositary”), hereby certifies that Cede & Co. is
the registered owner of 2,600,000 DEPOSITARY SHARES (“Depositary Shares”), each Depositary Share
representing 1/40th of one share of 8.00% Perpetual Preferred Stock, Series B, $1.00 par value,
liquidation preference $1,000 per share, (the “
Stock
”), of Associated Banc-Corp, a Wisconsin
corporation (the “
Corporation
”), on deposit with the Depositary, subject to the terms and entitled
to the benefits of the Deposit Agreement dated as of September 14, 2011 (the “
Deposit Agreement
”),
among the Corporation, the Depositary and the holders from time to time of the Depositary Receipts.
By accepting this Depositary Receipt, the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless
it shall have been executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer thereof.
This Depositary Receipt is transferable in New York, New York.
Dated: September 14, 2011
Wells Fargo bank, N.A., as Depositary
A-1
[FORM OF REVERSE OF RECEIPT]
ASSOCIATED BANC-CORP
ASSOCIATED BANC-CORP WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO REQUESTS A COPY
OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE ARTICLES OF AMENDMENT ESTABLISHING THE 8.00%
PERPETUAL PREFERRED STOCK, SERIES B, OF ASSOCIATED BANC-CORP ANY SUCH REQUEST IS TO BE ADDRESSED TO
THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
_____________________________
The Corporation will furnish without charge to each receiptholder who so requests the powers,
designations, preferences and relative, participating, optional or other special rights of each
class of stock or series thereof of the Corporation, and the qualifications, limitations or
restrictions of such preferences and/or rights. Such request may be made to the Corporation or to
the Transfer Agent.
EXPLANATION OF ABBREVIATIONS
The following abbreviations when used in the form of ownership on the face of this certificate
shall be construed as though they were written out in full according to applicable laws or
regulations. Abbreviations in addition to those appearing below may be used.
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Abbreviation
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Equivalent Phrase
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Abbreviation
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Equivalent Phrase
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JT TEN
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As joint tenants,
with right of
survivorship and
not as tenants in
common
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TEN BY ENT
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As tenants by the entireties
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TEN IN COM
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As tenants in common
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UNIF GIFT MIN ACT
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Uniform Gifts to Minors Act
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Abbreviation
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Equivalent Word
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Abbreviation
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Equivalent Word
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Abbreviation
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Equivalent Word
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ADM
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Administrator(s),
Administratrix
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EX
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Executor(s),
Executrix
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PAR
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Paragraph
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AGMT
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Agreement
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FBO
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For the benefit of
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PL
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Public Law
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ART
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Article
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FDN
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Foundation
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TR
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(As) trustee(s),
for, of
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CH
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Chapter
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GDN
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Guardian(s)
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U
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Under
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CUST
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Custodian for
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GDNSHP
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Guardianship
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UA
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Under agreement
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DEC
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Declaration
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MIN
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Minor(s)
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UW
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Under will of, Of
will of, Under last
will & testament
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EST
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Estate, of Estate of
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A-2
For value received, _______________________ hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
Depositary Shares represented by the within Receipt, and do(es) hereby irrevocably constitute
and appoint ____________________ Attorney to transfer the said Depositary Shares on the books of
the within named Depositary with full power of substitution in the premises.
Dated: _____________________________
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NOTICE: The
signature to the
assignment must
correspond with the name
as written upon the face
of this Receipt in every
particular, without
alteration or
enlargement or any
change whatsoever.
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SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations, and credit unions with membership in an approved
signature guarantee medallion program), pursuant to Rule 17Ad-15 under the Securities Exchange Act
of 1934.
A-3
EXHIBIT B
Holders of Stock shall be entitled to receive, only when, as and if declared by the
Company’s Board of Directors, or a duly authorized committee of the Board of Directors, but only
out of funds legally available therefor, cash dividends computed in accordance with this Exhibit B
and payable quarterly in arrears on the 15th day of each March, June, September and December in
each year (each such date a “
Dividend Payment Date
”), commencing on December 15, 2011, to holders
of record on the 15
th
calendar day before such Dividend Payment Date or such other
record date not more than 60 nor less than 10 days preceding such Dividend Payment Date fixed for
that purpose by the Board of Directors or such committee in advance of payment of each particular
dividend. If a Dividend Payment Date is not a Business Day, the applicable dividend will be paid on
the first Business Day following that day without adjustment.
Dividend Computation
:
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The amount of the dividend computed per share of Stock on each Dividend Payment Date that
occurs during the Cumulative Dividend Period will be equal to (x) the sum of the amounts
determined as follows for each Dividend Period that has occurred since the Start Date for that
share of Stock,
less
(y) the sum of all dividends previously paid with respect to that share
of Stock: Multiply the Dividend Rate by 0.25, and then multiply the result so obtained by
$1,000 (with the result of such calculation rounded upward if necessary to the nearest .00001
of 1%); provided that, if the Dividend Period is shorter than a full quarterly dividend
period, multiply the result of that calculation by a ratio the numerator of which is the sum
of the calendar days within each month encompassed by such Dividend Period (but not more than
30 calendar days for any month) and the denominator of which is 90. Any dividend payment
actually made during the Cumulative Dividend Period on shares of Stock will first be credited
against dividends computed with respect to Dividend Periods for the shares of Series B
Preferred Stock for which dividends have not been paid in full, beginning with the first such
period. Dividends for any Dividend Period that ends during the Cumulative Dividend Period that
have not been paid on the regular Dividend Payment Date may be declared and paid at any time
during the Cumulative Dividend Period, without reference to any Dividend Payment Date for that
Dividend Period, to holders of record of the Stock on such date as may be fixed by the Board
of Directors or duly authorized committee of the Board of Directors.
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•
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The amount of the dividend computed per share of Stock on each Dividend Payment Date that
occurs during the Non-Cumulative Dividend Period will be equal to the Dividend Rate multiplied
by 0.25, and then multiplied by $1,000 (with the result of such calculation rounded upward if
necessary to the nearest .00001 of 1%); provided that, if the Dividend Period is shorter than
a full quarterly dividend period, multiply the result of that calculation by a ratio the
numerator of which is the sum of the calendar days within each month encompassed by such
Dividend Period (but not more than 30 calendar days for any month) and the denominator of
which is 90. During the Non-Cumulative Dividend Period, dividends on shares of the Stock shall
not be cumulative. To the extent that any dividends payable on the shares of the Stock on any
Dividend Payment Date are not declared and paid, in full or otherwise,
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B-1
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on such Dividend Payment Date, then such unpaid dividends shall not cumulate and shall cease
to accrue and be payable, and the Company shall have no obligation to pay, and the holders of
the Stock shall have no right to receive, dividends accrued for such Dividend Period after the
Dividend Payment Date for such Dividend Period or interest with respect to such dividends,
whether or not dividends are declared for any subsequent Dividend Period with respect to the
Stock.
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Definitions
:
“
Business Day
” means each Monday, Tuesday, Wednesday, Thursday or Friday on which banking
institutions in the City of New York are not authorized or obligated by law, regulation or
executive order to close.
“
Cumulative Dividend Period
” means the period prior to the Non-Cumulative Dividend Period.
“
Dividend Period
” means each period commencing on (and including) a Dividend Payment Date and
continuing to (but not including) the next succeeding Dividend Payment Date (except that the first
Dividend Period (i) for the initial issuance of Stock shall commence upon (and include) the Issue
Date and (ii) for Stock issued after the Issue Date, shall commence upon (and include) the
applicable Start Date).
“
Dividend Rate
” means a rate per annum equal to 8.00%.
“
Issue Date
” means the initial date of delivery of shares of Stock.
“
Non-Cumulative Dividend Period
” means the period commencing upon the effective date of an
amendment to the Company’s Amended and Restated Articles of Incorporation, as amended, permitting
the issuance of preferred stock that pays non-cumulative dividends.
“
Start Date
” means, for each share of Stock, (x) the Issue Date, if such share was issued on
the Issue Date, (y) if such share was not issued on the Issue Date, the date of issue, if issued on
a Dividend Payment Date, or (z) otherwise, the most recent Dividend Payment Date preceding the date
of issue of such share.
B-2
\
EXHIBIT C
Exhibit C
[Articles of Amendment]
C-1
Exhibit 4.4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. TRANSFERS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY BANK OR
NONBANK SUBSIDIARY OF ASSOCIATED BANC-CORP AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
ASSOCIATED BANC-CORP
5.125% Senior Note Due 2016
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No. 002
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CUSIP No. 045488 AC7
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ASSOCIATED BANC-CORP, a Wisconsin corporation (herein called the “Company”, which term
includes any successor corporation under the Indenture hereinafter referred to), for value
received, herby promises to pay to
CEDE & CO.
or registered assigns, the principal sum of ONE HUNDRED THIRTY MILLION DOLLARS ($130,000,000) on
March 28, 2016 (the “Stated Maturity”), and to pay interest on said principal sum semiannually in
arrears on March 28 and September 28 in each year (individually referred to as an “Interest Payment
Date” and collectively as the “Interest Payment Dates”), commencing September 28, 2011, at the rate
of 5.125% per annum, computed on the basis of a 360-day year consisting of twelve 30-day months,
from March 28, 2011, or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, until the principal hereof is paid or made available for payment. The
Interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be
the 15
th
calendar day (whether or not a Business Day) next preceding such Interest
Payment Date,
provided
that interest payable on the Stated Maturity shall be payable to the
Person to whom the principal hereof is payable. In the event any Interest Payment Date or the
Stated Maturity is not a Business Day, principal and interest will be paid on the next succeeding
Business Day with the same force and effect as if made on such date and no interest on such payment
will accrue from and after such date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee (as defined below), notice of which shall be given to the
Holder of this Security not less than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in such indenture. Payment of the principal of and interest on this
Security due on the Stated Maturity will be made in immediately available funds upon presentation
of this Security,
provided
that it is presented to the Paying Agent in time for the Paying
Agent to make such payment in such funds in accordance with its normal procedures. For the
purposes of this Security, “Business Day” means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Place of Payment are authorized or
obligated by law or executive order to close. Payment of the principal of (and premium, if any)
and interest on this Security will be made at the office or agency of the Company maintained for
that purpose in The City of New York, New York, which shall initially be the office or agency of
the Trustee, and if this Security is no longer held in global form, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and
private debts;
provided
,
however
, that, at the option of the Company, payment of
interest (other than interest payable on the Stated Maturity) may be paid by check mailed to the
address of the Person entitled thereto as such address shall appear in the Security Register at the
close of business on the Regular Record Date.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
-2-
IN WITNESS WHEREOF, the Company has caused this Security to be duly executed.
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ASSOCIATED BANC-CORP
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By:
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/s/ Christopher Del Moral-Niles
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Name:
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Christopher Del Moral-Niles
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Title:
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Executive Vice President and
Deputy Chief
Financial Officer
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ATTEST:
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By:
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/s/ Joseph B. Selner
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Name:
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Joseph B. Selner
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Title:
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Executive Vice President and
Chief Financial
Officer
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned
Indenture.
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
As Trustee
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By:
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/s/ Lawrence M. Kusch
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Authorized Officer
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Date: September 13, 2011
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-3-
[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of notes of the series designated above of the
Company (herein called the “Securities”), issued and to be issued in one or more series under an
indenture dated as of March 14, 2011 for senior debt securities, between ASSOCIATED BANC-CORP and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee (the “Trustee”), as supplemented by the
Board Resolutions (as so supplemented, the “Indenture”), and reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in aggregate
principal amount equal to $430,000,000 as of the date of this Security. In addition, the Company
may from time to time without the consent of the Holders of Securities create and issue further
securities having the same terms and conditions as the Securities in all respects (or in all
respects except for the issue date and issue price) and so that such further issue shall be
consolidated and form a single series with the outstanding securities of this issue (including the
Securities) or upon such terms as the Company may determine at the time of their issue. References
herein to the Securities include (unless the contest requires otherwise) any other securities
issued as described in this paragraph and forming a single series with the Securities.
Where the Indenture or this Security provides for notice to the Holder of this Security of any
event, such notice shall be sufficiently given if in writing and mailed, first class, postage
prepaid, to the Holder of this Security at his, her or its address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to the Holder of this
Security by mail, then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any case where notice to the
Holder of this Security is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to the Holder of this Security shall affect the sufficiency of such notice
with respect to other Holders of the Securities.
On or after February 28, 2016, the Securities are subject to redemption in whole or in part,
upon not less than 10 days nor more than 60 days’ prior notice, at the election of the Company, at
a redemption price (“Redemption Price”) equal to 100% of the principal amount of the Securities to
be redeemed, plus accrued interest at the Redemption Date.
Notice of redemption may be delivered electronically or mailed by first-class mail to each
Holder of Securities to be redeemed at his, her or its registered address and will be deemed to
have been given on the first Business Day after electronic delivery or the second Business Day
after the date of mailing. The Securities may be redeemed in part but only in whole multiples of
$10,000,000. Delivery of a notice shall in no way preclude the ability of any Holder to sell or
transfer the Securities prior to the Redemption Date specified in such notice. If
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notice of redemption has been given as provided for by the Indenture, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the payment of the
Redemption Price) such Securities shall cease to bear interest.
This Security is not mandatorily redeemable, in whole or in part, prior to the Stated
Maturity. This Security is not subject to any sinking fund.
This Security shall have the benefit of the covenants and agreements set forth in the
Indenture.
If an Event of Default with respect to the Securities shall occur and be continuing, the
principal of all the securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modifications of the rights and obligations of the Company and the rights of the Company and
the rights of the Holders of the Securities of each series under the indenture to be affected at
any time by the Company with the consent of the Holders of a majority in principal amount of the
Outstanding Securities, and with respect to certain limited matters, the Company and the Trustee
may enter into one or more indentures supplemental to the indenture without the consent of any
Holder. The Indenture also contains provisions permitting the holders of a majority in principal
amount of the Outstanding Securities of each series, on behalf of the Holders of all Securities of
such series, to waive certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding, judicial or otherwise, with respect to the
Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder,
unless such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities, the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder, such Holder or Holders have
offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request, the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to institute such proceeding, and
no direction inconsistent with such written request has been given to the Trustee during such
60-day period by the Holders of a majority in principal amount of the Outstanding Securities. The
foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal of, premium, if any, and interest on this Security on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company which is absolute and unconditional to pay
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the principal of, premium, if any, and interest on this Security at the times, places and
rate, and in the coin or currency herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register of the Company, upon surrender of
this Security for registration of transfer at the office or agency of the Company in any Place of
Payment, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of authorized denominations and for
the same aggregate principal amount will be issued to the designated transferee or transferees.
The Securities are issuable only in fully registered form without coupons, in denominations of
$2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, the Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized denomination, as requested by
the holder surrendering the same.
The Securities are issuable in the form of one or more Global Securities and shall be
exchangeable for definitive Securities only in the circumstances specified in the Indenture. The
Depositary for the Securities shall be The Depository Trust Company.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the
contrary.
This Security shall be construed in accordance with and governed by the laws of the State of
New York.
All terms not defined herein shall have the respective meanings ascribed to them in the
Indenture.
Unless the certificate of authentication hereon has been manually executed by or on behalf of
the Trustee under such Indenture, this Security shall not be entitled to any benefits under such
Indenture or be valid or obligatory for any purpose.
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[FORM OF ASSIGNMENT]
For value received _______________________ hereby sell(s), assign(s) and transfer(s) unto
________________________ (please insert address and social security or other identifying number of
assignee) the within Security, and hereby irrevocably constitutes and appoints
_________________________ attorney to transfer the said Security on the books of the Company, with
full power of substitution in the premises.
Dated: ______________________
___________________________
___________________________
Signature(s)
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings
and loan associations and credit unions) with membership in an approved signature guarantee
medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.
___________________________
Signature Guarantee
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SCHEDULE OF INCREASES OR DECREASES
The initial principal amount of this Global Security is U.S. $300,000,000, and the aggregate
principal amount of this Global Security is U.S. $430,000,000. The following increases or
decreases in this Global Security have been made:
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Principal Amount of
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Amount of increase
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Amount of decrease
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this Global
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Signature of
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in Principal Amount
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in Principal Amount
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Security following
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authorized
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of this Global
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of this Global
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such increase or
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signatory of
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Date of Exchange
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Security
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Security
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decrease
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Trustee
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