Exhibit 4.1


 


 


 


 


 


 


 


DEPOSIT AGREEMENT 


between 


TCF FINANCIAL CORPORATION 


and 


COMPUTERSHARE TRUST
COMPANY, N.A. 


and 


COMPUTERSHARE INC., 


jointly as Depositary 


Dated as of June 25, 2012










 




 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  
	
  DEFINED TERMS

  
	
  Section 1.1.

  	
  Definitions.

  	
  1 

  
	
  ARTICLE II

  
	
  FORM OF RECEIPTS, DEPOSIT OF SERIES A
  PREFERRED STOCK, EXECUTION

  
	
  Section 2.1.

  	
  Form and
  Transfer of Receipts.

  	
  2 

  
	
  Section 2.2.

  	
  Deposit of
  Series A Preferred Stock; Execution and Delivery of Receipts in Respect
  Thereof.

  	
  3 

  
	
  Section 2.3.

  	
  Registration of
  Transfer of Receipts.

  	
  3 

  
	
  Section 2.4.

  	
  Split-ups and
  Combinations of Receipts; Surrender of Receipts and Withdrawal of Series A
  Preferred Stock.

  	
  4 

  
	
  Section 2.5.

  	
  Limitations on
  Execution and Delivery, Transfer, Surrender and Exchange of Receipts.

  	
  4 

  
	
  Section 2.6.

  	
  Lost Receipts,
  etc.

  	
  5 

  
	
  Section 2.7.

  	
  Cancellation
  and Destruction of Surrendered Receipts.

  	
  5 

  
	
  Section 2.8.

  	
  Redemption of
  Series A Preferred Stock.

  	
  5 

  
	
  ARTICLE III

  
	
  CERTAIN OBLIGATIONS OF HOLDERS OF

  
	
  Section 3.1.

  	
  Filing Proofs
  and Other Information.

  	
  6 

  
	
  Section 3.2.

  	
  Payment of
  Taxes or Other Governmental Charges.

  	
  6 

  
	
  Section 3.3.

  	
  Warranty as to
  Series A Preferred Stock.

  	
  6 

  
	
  Section 3.4.

  	
  Warranty as to
  Receipts.

  	
  6 

  
	
  ARTICLE IV

  
	
  THE DEPOSITED SECURITIES; NOTICES

  
	
  Section 4.1.

  	
  Cash Distributions.

  	
  7 

  
	
  Section 4.2.

  	
  Distributions
  Other than Cash, Rights, Preferences or Privileges.

  	
  7 

  
	
  Section 4.3.

  	
  Subscription
  Rights, Preferences or Privileges.

  	
  7 

  
	
  Section 4.4.

  	
  Notice of
  Dividends, etc.; Fixing Record Date for Holders of Receipts.

  	
  8 

  
	
  Section 4.5.

  	
  Voting Rights.

  	
  8 

  
	
  Section 4.6.

  	
  Changes
  Affecting Deposited Securities and Reclassifications, Recapitalizations, etc.

  	
  9 

  
	
  Section 4.7.

  	
  Delivery of
  Reports.

  	
  9 

  
	
  Section 4.8.

  	
  Lists of
  Receipt Holders.

  	
  9 

  









 




 


	
  ARTICLE V

  
	
  THE DEPOSITARY, THE DEPOSITARY’S

  
	
  Section 5.1.

  	
  Maintenance of
  Offices, Agencies and Transfer Books by the Depositary; Registrar.

  	
  9 

  
	
  Section 5.2.

  	
  Prevention of
  or Delay in Performance by the Depositary, the Depositary’s Agents, the
  Registrar or the Corporation.

  	
  10 

  
	
  Section 5.3.

  	
  Obligations of
  the Depositary, the Depositary’s Agents, the Registrar and the Corporation.

  	
  10 

  
	
  Section 5.4.

  	
  Resignation and
  Removal of the Depositary; Appointment of Successor Depositary.

  	
  11 

  
	
  Section 5.5.

  	
  Corporate
  Notices and Reports.

  	
  12 

  
	
  Section 5.6.

  	
  Indemnification
  by the Corporation.

  	
  12 

  
	
  Section 5.7.

  	
  Fees, Charges
  and Expenses.

  	
  12 

  
	
  ARTICLE VI

  
	
  AMENDMENT AND TERMINATION

  
	
  Section 6.1.

  	
  Amendment.

  	
  13 

  
	
  Section 6.2.

  	
  Termination.

  	
  13 

  
	
  ARTICLE VII

  
	
  MISCELLANEOUS

  
	
  Section 7.1.

  	
  Counterparts.

  	
  13 

  
	
  Section 7.2.

  	
  Exclusive Benefit
  of Parties.

  	
  13 

  
	
  Section 7.3.

  	
  Invalidity of
  Provisions.

  	
  13 

  
	
  Section 7.4.

  	
  Notices.

  	
  14 

  
	
  Section 7.5.

  	
  Depositary’s
  Agents.

  	
  14 

  
	
  Section 7.6.

  	
  Appointment of
  Registrar, Dividend Disbursing Agent and Redemption Agent in Respect of the
  Series A Preferred Stock.

  	
  14 

  
	
  Section 7.7.

  	
  Governing Law.

  	
  14 

  
	
  Section 7.8.

  	
  Inspection of
  Deposit Agreement.

  	
  15 

  
	
  Section 7.9.

  	
  Headings.

  	
  15 

  
	
  Section 7.10.

  	
  Confidentiality.

  	
  15 

  












 




 


DEPOSIT AGREEMENT


DEPOSIT AGREEMENT dated as of June 25, 2012, between
(i) TCF Financial Corporation, a Delaware corporation, on the one hand, and
(ii) COMPUTERSHARE INC., a Delaware Corporation (“Computershare”), and its
wholly-owned subsidiary, COMPUTERSHARE TRUST COMPANY, N.A., a federally
chartered national association (the “Trust Company”), jointly as Depositary (as
hereinafter defined), on the other hand. 


WHEREAS, it is desired to provide, as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of Series A
Preferred Stock of the Corporation from time to time with the Depositary for
the purposes set forth in this Deposit Agreement and for the issuance hereunder
of Receipts evidencing Depositary Shares in respect of the Series A Preferred
Stock so deposited; and 


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


NOW, THEREFORE, in consideration of the premises, the
parties hereto agree as follows: 




DEFINED TERMS 


Section 1.1.  Definitions.


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


 


“Certificate
of Designations” shall mean the relevant Certificate of Designations filed with
the Secretary of State of the State of Delaware establishing the Series A
Preferred Stock as a series of preferred stock of the Corporation. 


“Corporation” shall mean TCF Financial Corporation, a
Delaware corporation, and its successors. 


“Deposit Agreement” shall mean this Deposit Agreement,
as amended or supplemented from time to time in accordance with the terms
hereof. 


“Depositary” shall mean Computershare and the Trust
Company, acting jointly, and any successor as Depositary hereunder. 


“Depositary Shares” shall mean the depositary shares,
each representing one-one thousandth of one share of the Series A Preferred
Stock, evidenced by a Receipt. 


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


“Depositary’s Office” shall mean the principal office
of the Depositary in Canton, Massachusetts, at which at any particular time its
depositary receipt business shall be administered. 


“Officer’s Certificate” means a certificate in
substantially the form set forth as Exhibit B hereto, which is signed by an
officer of the Corporation and which shall include the terms and conditions of
the Series A Preferred Stock to be issued by the Corporation and deposited with
the Depositary from time to time in accordance with the terms hereof. 


“Receipt” shall mean one of the depositary receipts
issued hereunder, substantially in the form set forth as Exhibit A hereto,
whether in definitive or temporary form, and evidencing the number of
Depositary Shares with respect to the Series A Preferred Stock held of record
by the Record Holder of such Depositary Shares. 


“Record Holder” or “Holder” as applied to a Receipt
shall mean the person in whose name such Receipt is registered on the books of
the Depositary maintained for such purpose. 


“Registrar” shall mean the Depositary or such other
successor bank or trust company which shall be appointed by the Corporation to
register ownership and transfers of Receipts as herein provided and if a
successor 


1










 




Registrar shall be so appointed, references herein to
“the books” of or maintained by the Depository shall be deemed, as applicable,
to refer as well to the register maintained by such Registrar for such purpose.



“Securities Act” shall mean the Securities Act of
1933, as amended. 


“Series A Preferred Stock” shall mean the shares of
the Corporation’s Series A Non-Cumulative Perpetual Preferred Stock, par value
$0.01 per share, with a liquidation preference of $25,000 per share, designated
in the Certificate of Designations and described in the Officer’s Certificate
delivered pursuant to Section 2.2 hereof. 


“Underwriting Agreement” shall mean that certain
Underwriting Agreement dated as of June 18, 2012, between the Corporation and
Morgan Stanley & Co. LLC and UBS Securities LLC, as representatives of the
several underwriters named in Schedule II thereto. 


aRTICLE ii

FORM OF RECEIPTS, DEPOSIT OF SERIES A PREFERRED STOCK, EXECUTION 


AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS 


Section 2.1  Form and Transfer of Receipts.



The definitive Receipts shall be substantially in the
form set forth in Exhibit A annexed to this Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided and shall be
engraved or otherwise prepared so as to comply with applicable rules of the New
York Stock Exchange, Inc. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Corporation, delivered in compliance
with Section 2.2, shall execute and deliver temporary Receipts which may be
printed, lithographed, typewritten, mimeographed or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Corporation
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the penultimate paragraph of
Section 2.2, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of
Depositary Shares as represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Corporation’s expense and without
any charge therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Agreement as definitive
Receipts. 


Receipts shall be executed by the Depositary by the manual
or facsimile signature of a duly authorized officer of the Depositary. No
Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed manually
or by the facsimile signature of 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
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. 


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 Corporation 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 Series A Preferred 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. 


2











 




Section 2.2  Deposit of Series A
Preferred Stock; Execution and Delivery of Receipts in Respect Thereof. 


Subject to the terms and conditions of this Deposit
Agreement, the Corporation may from time to time deposit shares of Series A
Preferred Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for such shares of Series A Preferred Stock to be
deposited, properly endorsed or accompanied, if required by the Depositary, by
a duly executed instrument of transfer or endorsement, in form satisfactory to
the Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement and an
executed Officer’s Certificate attaching the Certificate of Designations and
all other information required to be set forth therein, and together with a
written order of the Corporation 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 Series A Preferred Stock. Each
Officer’s Certificate delivered to the Depositary in accordance with the terms
of this Deposit Agreement shall be deemed to be incorporated into this Deposit
Agreement and shall be binding on the Corporation, the Depositary and the
Holders of Receipts to which such Officer’s Certificate relates. 


The Series A Preferred Stock that is deposited 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
Series A Preferred Stock deposited hereunder. 


Upon receipt by the Depositary of a certificate or
certificates for Series A Preferred Stock deposited in accordance with the
provisions of this Section, together with the other documents required as above
specified, and upon recordation of the Series A Preferred Stock on the books of
the Corporation (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
Series A Preferred 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. 


 


The Company shall provide an
opinion of counsel prior to the date hereof to set up reserve of Depositary
Shares and related to the Series A Preferred Stock.  The opinion shall state
that:


(1)  all Depositary Shares and the shares of Series A
Preferred Stock represented by such Depositary Shares are registered under the
Securities Act of 1933, as amended, or are exempt from such registration, and
all appropriate State securities law filings have been made with respect to the
Depositary Shares or Series A Preferred Stock; 


(2) 
the shares of Series A Preferred Stock represented by the Depositary Shares are
validly issued, fully paid and non-assessable; and


(3) the Depositary Shares are validly issued and will
entitle the holders of the Receipts representing the Depositary Shares to the
rights specified in the Receipts and this Deposit Agreement.


Section
2.3  Registration of Transfer of Receipts. 


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. 


3











 




Section 2.4  Split-ups and
Combinations of Receipts; Surrender of Receipts and Withdrawal of Series A
Preferred Stock. 


Upon surrender of a Receipt or Receipts at the
Depositary’s Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, 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 Series A Preferred 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 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 Series A
Preferred 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 Series A Preferred Stock will not thereafter be entitled to deposit
such Series A Preferred 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 Series A Preferred Stock, Depositary shall at the same
time, in addition to such number of whole shares of Series A Preferred Stock
and such money and other property, if any, to be so withdrawn, deliver to such
Holder, or subject to Section 2.3 upon his order, a new Receipt evidencing such
excess number of Depositary Shares. 


In no event will fractional shares of Series A
Preferred Stock (or any cash payment in lieu thereof) be delivered by the
Depositary. Delivery of the Series A Preferred 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 Series A Preferred 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 related Receipt or Receipts being
surrendered for withdrawal of such Series A Preferred 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 Series A Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer in blank. 


Delivery of the Series A Preferred 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
Corporation may require payment to it of a sum sufficient for the payment (or,
in the event that the Depositary or the Corporation 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
(which evidence shall include a signature guarantee from an eligible guarantor
institution participating in a signature guarantee program approved by the
Securities Transfer Association), and any other reasonable evidence of
authority that may be required by the Depositary, and may also require
compliance with such regulations, if any, as the Depositary or the Corporation
may establish consistent with the provisions of this Deposit Agreement and/or
applicable law. 


The deposit of the Series A Preferred Stock may be
refused, the delivery of Receipts against Series A Preferred 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
Corporation is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary’s Agents or the Corporation
at any time or from time to time because of any


4










 




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 his or her ownership thereof
and (ii) the Holder thereof furnishing of the Depositary with an affidavit and
an indemnity or bond reasonably satisfactory to the Depositary. Such Holder
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Depositary may prescribe and as required by Section 8-405
of the Uniform Commercial Code in effect in the State of New York.


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 Series A Preferred Stock. 


Whenever the Corporation shall be permitted and shall
elect to redeem shares of Series A Preferred Stock in accordance with the terms
of the Certificate of Designations, it shall (unless otherwise agreed to in
writing with the Depositary) give or cause to be given to the Depositary, not
less than 30 days and not more than 60 days prior to the Redemption Date (as
defined below), notice of the date of such proposed redemption of Series A
Preferred Stock and of the number of such shares held by the Depositary to be
so redeemed and the applicable redemption price, which notice shall be accompanied
by a certificate from the Corporation stating that such redemption of Series A
Preferred Stock is in accordance with the provisions of the Certificate of
Designations. On the date of such redemption, provided that the Corporation
shall then have paid or caused to be paid in full to the Depositary the
Redemption Price (as such term is defined in the Certificate of Designations)
of the Series A Preferred Stock to be redeemed, in accordance with the
provisions of the Certificate of Designations, the Depositary shall redeem the
number of Depositary Shares representing such Series A Preferred Stock. Notice
of the Corporation’s redemption of Series A Preferred Stock and the proposed
simultaneous redemption of the number of Depositary Shares representing the
Series A Preferred Stock to be redeemed shall be (1) mailed by first-class
mail, postage prepaid, at the respective last addresses as they appear on the
records of the Depositary, or (2) transmitted by such other method approved by
the Depositary, in its reasonable discretion, in either case not less than 30
days and not more than 60 days prior to the date fixed for redemption of such
Series A Preferred Stock and Depositary Shares (the “Redemption Date”), to the
Record Holders of the Receipts evidencing the Depositary Shares to be so
redeemed; but neither failure to mail or transmit 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 Corporation 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 redemption price; (iv) the place or places where Receipts evidencing
such Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Series A Preferred Stock
represented by such Depositary Shares to be redeemed will cease to accrue on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected
either pro rata or by lot or in such other manner as the Board of Directors of
the Corporation or any duly authorized committee of the Board of Directors of
the Corporation may determine to be fair and equitable. 


Notice having been mailed or transmitted by the
Depositary as aforesaid, from and after the Redemption Date (unless the
Corporation shall have failed to provide the funds necessary to redeem the
Series A Preferred Stock evidenced by the Depositary Shares called for
redemption) (i) dividends on the shares of Series A Preferred Stock so called
for Redemption shall cease to accrue from and after such date, (ii) the
Depositary Shares being redeemed from such proceeds shall be deemed no longer
to be outstanding, (iii) all rights of the Holders of Receipts 


5










 




evidencing such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate, and (iv) 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 equal to one-one
thousandth of the Redemption Price (as such term is defined in the Certificate
of Designations) per share of Series A Preferred Stock so redeemed plus all money
and other property, if any, represented by such Depositary Shares, including
all amounts paid by the Corporation in respect of dividends which on the
Redemption Date have been declared on the shares of Series A Preferred Stock to
be so redeemed and have not been paid. 


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. 


ARTICLE
iii


CERTAIN OBLIGATIONS OF HOLDERS OF


RECEIPTS AND THE CORPORATION 


Section
3.1  Filing Proofs 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 Corporation may reasonably deem necessary or proper. The
Depositary or the Corporation may withhold the delivery, or delay the
registration of transfer or redemption, of any Receipt or the withdrawal of the
Series A Preferred Stock represented by the Depositary Shares and evidenced by
a 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
Series A Preferred Stock and all money or other property, if any, represented
by the Depositary Shares evidenced by such Receipt may be refused until any
such payment due is made, and any dividends, interest payments or other
distributions may be withheld or any part of or all the Series A Preferred
Stock or other property represented by the Depositary Shares evidenced by such
Receipt and not theretofore sold may be sold for the account of the Holder
thereof (after attempting by reasonable means to notify such Holder prior to such
sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the Holder of such Receipt remaining liable for any deficiency. 


Section
3.3  Warranty as to Series A Preferred Stock. 


The Corporation hereby represents and warrants that
the Series A Preferred Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Series A Preferred Stock and the issuance of the
related Receipts. 


  


Section
3.4  Warranty as to Receipts. 


The Corporation hereby represents and warrants that
the Receipts, when issued, will represent legal and valid interests in the
Series A Preferred Stock. Such representation and warranty shall survive the
deposit of the Series A Preferred Stock and the issuance of the Receipts. 


6











 




ARTICLE IV


THE DEPOSITED SECURITIES; NOTICES


Section 4.1  Cash Distributions. 


Whenever
Computershare shall receive any cash dividend or other cash distribution on the
Series A Preferred Stock, Computershare 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 Corporation or Computershare shall be required to withhold and shall
withhold from any cash dividend or other cash distribution in respect of the
Series A Preferred Stock an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. Computershare 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 Receipts a fraction of one
cent, and any balance not so distributable shall be held by Computershare
(without liability for interest thereon) and shall be added to and be treated
as part of the next sum received by Computershare for distribution to Record
Holders of Receipts then outstanding. Each Holder of a Receipt shall provide
Computershare 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
Computershare of a portion of any of the distributions to be made hereunder. 


The Corporation acknowledges that the bank accounts
maintained by Computershare in connection with the services provided under this
Agreement will be in Computershare’s name and that Computershare may receive
investment earnings in connection with the investment at Computershare’s risk
and for its benefit of funds held in those accounts from time to time. Neither
the Corporation nor the record holders will receive interest on any deposits or
funds held by Computershare 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 the Series A Preferred
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 the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by such Receipts held by such Holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such Record Holders, or if for any other reason
(including any requirement that the Corporation or the Depositary withhold an
amount on account of taxes) the Depositary deems, after consultation with the
Corporation, such distribution not to be feasible, the Depositary may, with the
approval of the Corporation, 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
Receipts as provided by Section 4.1 in the case of a distribution received in
cash. The Corporation 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
Corporation 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 Corporation shall at any time offer or cause to
be offered to the persons in whose names the Series A Preferred Stock is
recorded on the books of the Corporation 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 Corporation shall direct and the Depositary
shall agree, 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 Corporation in its discretion with the acknowledgement
of the Depositary; provided, however, that (i) if at the time 


7










 




of issue or offer of any such rights, preferences or
privileges the Corporation determines that it is not lawful or (after
consultation with the Depositary) 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
Corporation, in its discretion (with acknowledgement of the Depositary, in any
case where the Corporation 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 Corporation 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 Corporation agrees with the Depositary that it will
file promptly a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
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 Corporation shall have provided
to the Depositary an opinion of counsel to the effect that the offering and
sale of such securities to the Holders are exempt from registration under the
provisions of the Securities Act. 


The Corporation 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 Corporation agrees with the Depositary that the Corporation 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
the Series A Preferred Stock, or whenever the Depositary shall receive notice
of any meeting at which holders of the Series A Preferred Stock are entitled to
vote or of which holders of the Series A Preferred Stock are entitled to
notice, or whenever the Depositary and the Corporation 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 Corporation with
respect to or otherwise in accordance with the terms of the Series A Preferred
Stock) for the determination of the Holders of Receipts who shall be entitled
to receive such dividend, distribution, rights, preferences or privileges or
the net proceeds of the sale thereof, or to give instructions for the exercise
of voting rights at any such meeting, or who shall be entitled to notice of
such meeting or for any other appropriate reasons. 


Section 4.5  Voting Rights. 


Subject to the provisions of the Certificate of
Designations, upon receipt of notice of any meeting at which the holders of the
Series A Preferred Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail or transmit by such other method approved by the
Depositary, in its reasonable discretion, to the Record Holders of Receipts a
notice prepared by the Corporation 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 Series A Preferred
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 Corporation) 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 Series A Preferred Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are 


8










 




received. The Corporation hereby agrees to take all
reasonable action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Series A Preferred Stock or cause such
Series A Preferred Stock to be voted. In the absence of specific instructions
from Holders of Receipts, the Depositary will vote the Series A Preferred Stock
represented by the Depositary Shares evidenced by the Receipts of such Holders
proportionately with votes cast pursuant to instructions received from the
other Holders. 


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 Series A Preferred Stock,
subject to the provisions of the Certificate of Designations, or upon any
recapitalization, reorganization, merger or consolidation affecting the
Corporation or to which it is a party, the Corporation may, in its discretion
and with the acknowledgement of the Depositary, (i) make such adjustments as
are certified by the Corporation in the fraction of an interest represented by
one Depositary Share in one share of Series A Preferred Stock and in the ratio
of the redemption price per Depositary Share to the Redemption Price (as such
term is defined in the Certificate of Designations) per share of Series A
Preferred Stock, 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 the Series A Preferred 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 Series A Preferred Stock as new deposited securities so received
in exchange for or upon conversion or in respect of such Series A Preferred
Stock. In any such case, the Corporation may, in its discretion and with the
acknowledgement of the Depositary, 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 Series A Preferred Stock
or any such recapitalization, reorganization, merger or consolidation to
surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Series A Preferred Stock represented thereby only
into or for, as the case may be, the kind and amount of shares and other
securities and property and cash into which the Series A Preferred Stock
represented by such Receipts might have been converted or for which such Series
A Preferred 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 Corporation which is received
by the Depositary and which the Corporation is required to furnish to the
holders of the Series A Preferred Stock. 


Section 4.8  Lists of Receipt Holders.



Reasonably promptly upon request from time to time by
the Corporation, at the sole expense of the Corporation, 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 registered Holders of
Receipts. 


Article v


THE DEPOSITARY, THE DEPOSITARY’S


AGENTS, THE REGISTRAR AND THE CORPORATION 


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 of Receipts, which
books at all reasonable times shall be made available for inspection by the
Record Holders of Receipts; provided that any such Holder requesting to
exercise such right shall certify to the Depositary 


9










 




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 Corporation may 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 Series A Preferred
Stock represented by such Depositary Shares shall be listed on one or more
national securities exchanges, the Corporation will appoint a Registrar for
registration of the 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 Corporation. If the Receipts, Depositary
Shares or Series A Preferred Stock are listed on one or more other securities
exchanges, the Depositary will, at the request of the Corporation, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange of the Receipts, Depositary Shares or Series A Preferred Stock as
may be required by law or applicable securities exchange regulation. 


Section 5.2  Prevention of or Delay in Performance by the
Depositary, the Depositary’s Agents, the Registrar or the Corporation. 


Neither the Depositary nor any
Depositary’s Agent nor any Registrar nor the Corporation shall incur any
liability to any Holder of a 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 Corporation’s Amended and Restated
Certificate of Incorporation (including the Certificate of Designations) 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
Corporation 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 Corporation 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 Corporation. 


Neither the Depositary nor any Depositary’s Agent nor
any Registrar nor the Corporation 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, bad faith or fraud. Notwithstanding
anything in this Agreement to the contrary, neither the Depositary, nor the
Depositary’s Agent nor any Registrar nor the Corporation 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).
Notwithstanding anything contained herein to the contrary, the Depositary’s
aggregate liability during any term of this Agreement with respect to, arising
from, or arising in connection with this Agreement, or from all Services
provided or omitted to be provided under this Agreement, whether in contract,
or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid
hereunder by the Corporation to Depositary as fees and charges, but not
including reimbursable expenses; provided, however, that the limitation
of liability set forth in this sentence shall not apply to any act or omission
of the Depositary constituting recklessness, willful misconduct, bad faith, or
fraud. 


Neither the Depositary nor any Depositary’s Agent nor
any Registrar nor the Corporation shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of the
Series A Preferred 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 Corporation 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 Series A Preferred 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 


10










 




Agent, any Registrar and the Corporation 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 shall not be responsible for any
failure to carry out any instruction to vote any of the shares of Series A
Preferred 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 Agreement,
and no implied covenants or obligations shall be read into this 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 Corporation and
its affiliates and in Receipts. The Depositary may also act as transfer agent
or registrar of any of the securities of the Corporation 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 Agreement or of the Receipts, the Depositary Shares or the
Series A Preferred 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 Corporation 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 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 Corporation, refrain from taking any action and shall be fully protected
and shall not be liable in any way to the Corporation, 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
Corporation 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 terms of this Section 5.3 shall survive
termination of this Agreement.


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
Corporation, 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
Corporation by notice of such removal delivered to the Depositary, such removal
to take effect upon the appointment of 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 Corporation 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
Corporation 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 Corporation, 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 Series A Preferred 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 or transmit by such other method approved by such successor Depositary, in
its reasonable discretion, notice of its appointment to the Record Holders of
Receipts. 


11










 




Any entity into or with
which the Depositary may be merged, consolidated or converted shall be the
successor of the 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 its own name as successor Depositary. 


Section
5.5  Corporate Notices and Reports. 


The Corporation 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 Series A Preferred Stock, the Depositary
Shares or the Receipts are listed or by the Corporation’s Amended and Restated
Certificate of Incorporation (including the Certificate of Designations), to be
furnished to the Record Holders of Receipts. Such transmission will be at the
Corporation’s expense and the Corporation 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
Corporation’s expense such other documents as may be requested by the
Corporation. 


From time-to-time and after the date hereof, the
Corporation agrees that it will perform, acknowledge and deliver or cause to be
performed, acknowledged and delivered all such further and other acts,
documents, instruments and assurances as may be reasonably required by the
Depositary for the carrying out or performing by the Depositary of the
provisions of this Agreement. 


Section
5.6  Indemnification by the Corporation. 


Notwithstanding Section 5.3 to the contrary, the
Corporation 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, taken or omitted to be taken in
connection with this 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 Corporation 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 Corporation agrees promptly to pay the Depositary
the compensation to be agreed upon with the Corporation 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 agent or Depositary Agent) in
connection with the services rendered by it (or such agent or Depositary Agent)
hereunder. The Corporation shall pay all charges of the Depositary in
connection with the initial deposit of the Series A Preferred Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of Series
A Preferred Stock by owners of Depositary Shares, and any redemption or
exchange of the Series A Preferred Stock at the option of the Corporation. The
Corporation 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
Corporation 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 Corporation at such intervals as the Corporation and the
Depositary may agree using the Ariba invoicing system (or using such other
system or means of presenting statements for charges and expenses as the
Corporation and the Depositary may mutually agree from time to time hereafter).



12











 




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 Corporation and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the Holders of Receipts shall be
effective against the Holders of Receipts unless such amendment shall have been
approved by the Holders of Receipts representing in the aggregate at least a
two-thirds majority of the Depositary Shares then outstanding. Every Holder of
an outstanding Receipt at the time any such amendment becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the 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 Series A Preferred 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 securities
exchange. 


Section
6.2  Termination. 


This Agreement may be terminated by the Corporation or
the Depositary only if (i) all outstanding Depositary Shares issued hereunder
have been redeemed pursuant to Section 2.8, (ii) there shall have been made a
final distribution in respect of the Series A Preferred Stock in connection
with any liquidation, dissolution or winding up of the Corporation and such
distribution shall have been distributed to the Holders of Receipts
representing Depositary Shares pursuant to Section 4.1 or 4.2, as applicable,
(iii) upon the consent of Holders of Receipts representing in the aggregate not
less than two-thirds of the Depositary Shares outstanding or (iv) at any time
by any party upon a material breach of a representation, covenant or term of
this Agreement by any other party which is not cured within a period not to
exceed thirty (30) days after the date of written notice thereof by one of the
other parties. 


Upon the termination of this Deposit Agreement, the
Corporation 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; provided further that Section 5.3
and 5.6 shall survive the termination of this Agreement. 


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. 


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. 


13











 




Section 7.4  Notices. 


Any and all notices to be given to the
Corporation 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,
facsimile transmission or electronic mail, confirmed by letter, addressed to
the Corporation at 


 


TCF
Financial Corporation


200 East Lake Street


Wayzata, Minnesota 55391


Attention: Treasurer


Facsimile No.: (952) 475-7975 


Email:  investor@tcfbank.com


or at
any other addresses of which the Corporation shall have notified the Depositary
in writing. 


Any and all notices to be given to the
Depositary hereunder or under the Receipts shall be in writing and shall 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 


Computershare Trust Company, N.A.


250 Royall Street 


Canton, Massachusetts 02021 


Attention: General Counsel 


Facsimile No.: 781.575.4210


or at
any other address of which the Depositary shall have notified the Corporation
in writing. 


Except as otherwise provided herein, 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, facsimile transmission or 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 as
provided in the previous sentence 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; provided, that the Depositary or the Corporation may,
however, act upon any facsimile or electronic mail 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 Corporation
of any such action. 


Section 7.6  Appointment of Registrar, Dividend Disbursing
Agent and Redemption Agent in Respect of the Series A Preferred Stock. 


Unless otherwise set forth on the Officer’s
Certificate delivered pursuant to Section 2.2 hereof, the Corporation hereby
appoints the Trust Company as registrar, dividend disbursing agent and
redemption agent in respect of the Series A Preferred Stock deposited with the
Depositary hereunder, and the Trust Company hereby accepts such appointments.
With respect to the appointment of the Trust Company as registrar, dividend
disbursing agent and redemption agent in respect of the Series A Preferred
Stock, the Trust Company, in its capacity under such appointment, shall be
entitled to the same rights, indemnities, immunities and benefits as the
Depositary hereunder as if explicitly named in each such provision. 


Section 7.7  Governing Law. 








 




This Deposit Agreement and the Receipts of each series 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. 


14











 




Section 7.8  Inspection of Deposit
Agreement. 


Copies of this Deposit Agreement shall be filed with
the Depositary and the Depositary’s Agents and shall be made available for
inspection during business hours upon reasonable notice to the Depositary by
any Holder of a Receipt. 


Section 7.9  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. 


Section 7.10  Confidentiality. 


The Depositary and the Corporation agree that all
books, records, information and data pertaining to the business of the other
party, including, inter alia, personal, non-public Holder information,
which are exchanged or received pursuant to the negotiation or the carrying out
of this Deposit Agreement, shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by law or
legal process. 


 


[Remainder of page
intentionally left blank; signature page follows]


 


15











 




 


IN WITNESS WHEREOF, the Corporation and the Depositary
have duly executed this Agreement as of the day and year first above set forth.



 




	
   

  	
   

  	
   

  
	
  TCF
  FINANCIAL CORPORATION

  
	
   

  	
   

  
	
  By:

  	
    

  	
  /s/
  James S. Broucek

  
	
   

  	
    

  	
  Name: James S. Broucek

  Title:
  Senior Vice President and Treasurer

  






  




	
   

  	
   

  	
   

  
	
  COMPUTERSHARE INC. and

  COMPUTERSHARE TRUST

  COMPANY, N.A., acting jointly

  
	
   

  	
   

  
	
  By:

  	
    

  	
  /s/
  Dennis V. Moccia

  
	
   

  	
    

  	
  Name: Dennis V. Moccia

  
	
   

  	
    

  	
  Title:
  Manager, Contract Administration

  






 


 


 


 


 


Signature Page to Deposit Agreement  


16










 




EXHIBIT A 


FORM OF RECEIPT 


 


Unless this receipt is presented by an
authorized representative of The Depository Trust Company, a New York
corporation (“DTC”), to TCF Financial Corporation 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.


DEPOSITARY
SHARES


[                
]


DEPOSITARY
RECEIPT FOR DEPOSITARY SHARES EACH 

REPRESENTING 1/1,000TH OF ONE SHARE OF SERIES A NON-CUMULATIVE PERPETUAL PREFERRED STOCK


OF


TCF FINANCIAL CORPORATION


INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE


CUSIP: 872277207

SEE REVERSE FOR CERTAIN DEFINITIONS


 


Dividend Payment Dates: Beginning
September 1, 2012, each March 1, June 1, September 1 and December 1. 


COMPUTERSHARE TRUST COMPANY,
N.A. and COMPUTERSHARE INC., acting jointly as Depositary (the “Depositary”),
hereby certifies that Cede & Co. is the registered owner of [__________]
DEPOSITARY SHARES (“Depositary Shares”), each Depositary Share representing
1/1,000th of one share of Series A Non-Cumulative Perpetual Preferred Stock,
par value $0.01 per share, liquidation preference $25,000
per share, (the “Stock”), of TCF Financial Corporation, a Delaware
corporation (the “Corporation”), on deposit with the Depositary, subject
to the terms and entitled to the benefits of the Deposit Agreement dated as of
June 25, 2012 (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:
________________________


COMPUTERSHARE
TRUST COMPANY, N.A., and


COMPUTERSHARE
INC., acting jointly as Depositary


 


By:_________________________

Authorized Officer


[FORM
OF REVERSE OF RECEIPT]


 TCF FINANCIAL CORPORATION


TCF FINANCIAL CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH HOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE 





 




CERTIFICATE OF DESIGNATIONS ESTABLISHING THE SERIES A NON-CUMULATIVE  PERPETUAL PREFERRED
STOCK OF TCF FINANCIAL CORPORATION.
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 holder 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 Registrar.


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.




	
  Abbreviation

  	
  Equivalent Phrase

  	
  Abbreviation

  	
  Equivalent Phrase

  
	
  JT TEN

  	
  As joint tenants, with
  right of survivorship and not as tenants in common

  	
  TEN BY ENT

  	
  As tenants by the
  entireties

  
	
  TEN IN COM

  	
  As tenants in common

  	
  UNIF GIFT MIN ACT

  	
  Uniform Gifts to Minors
  Act

  






 




	
  Abbreviation

  	
  Equivalent Word

  	
  Abbreviation

  	
  Equivalent Word

  	
  Abbreviation

  	
  Equivalent Word

  
	
  ADM

  	
  Administrator(s), Administratrix

  	
  EX

  	
  Executor(s), Executrix

  	
  PAR

  	
  Paragraph

  
	
  AGMT

  	
  Agreement

  	
  FBO

  	
  For the benefit of

  	
  PL

  	
  Public Law

  
	
  ART

  	
  Article

  	
  FDN

  	
  Foundation

  	
  TR

  	
  (As) trustee(s), for,
  of

  
	
  CH

  	
  Chapter

  	
  GDN

  	
  Guardian(s)

  	
  U

  	
  Under

  
	
  CUST

  	
  Custodian for

  	
  GDNSHP

  	
  Guardianship

  	
  UA

  	
  Under agreement

  
	
  DEC

  	
  Declaration

  	
  MIN

  	
  Minor(s)

  	
  UW

  	
  Under will of, Of will
  of, Under last will & testament

  
	
  EST

  	
  Estate, of Estate of

  	
   

  	
   

  	
   

  	
   

  






 











 




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:
_____________________________


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.


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.


  


  


 











 




 


EXHIBIT B 


FORM OF OFFICER’S
CERTIFICATE 


I, [name]         , [title]         of TCF
Financial Corporation (the “Corporation”), hereby certify that pursuant
to the terms of the Certificate of Designations filed with the Secretary of
State of the State of Delaware on June 18, 2012 (the “Certificate of
Designations”), and pursuant to resolutions adopted at a meeting of the
Board of Directors of the Corporation (the “Board”) on June 11, 2012 and
resolutions adopted at a meeting of the Offering Committee of the Board of
Directors on June 18, 2012, the Corporation has established the Series A
Non-Cumulative Perpetual Preferred Stock (the “Series A Preferred Stock”)
which the Corporation desires to deposit with the Depositary for the purposes
of being subject to the terms and conditions of the Deposit Agreement, dated as
of June 25, 2012, by and between the Corporation, on the one hand, and
Computershare Trust Company, N.A. and Computershare Inc., jointly as
Depositary, on the other hand (the “Deposit Agreement”). In connection
therewith, the Board of Directors or a duly authorized committee thereof has
authorized the terms and conditions with respect to the Series A Preferred
Stock as described in the Certificate of Designations attached as Annex A
hereto. Any terms of the Series A Preferred Stock that are not so described in
the Certificate of Designations and any terms of the Receipts representing such
Series A Preferred Stock that are not described in the Deposit Agreement are
described below: 


Aggregate Number of shares of Series A Preferred Stock
issued on the day hereof: 


CUSIP Number for Receipts: 


Denomination of Depositary Share per share of Series A
Preferred Stock (if different than 1/1000th of a share of Series A Preferred
Stock): 


Redemption Provisions (if different than as set forth
in the Deposit Agreement): 


Name of Global Receipt Depositary: The Depository
Trust Company


Name of Registrar with Respect to the Receipts (if
other than Computershare Trust Company, N.A.): 


Name of Registrar, Dividend Disbursing Agent, and
Redemption Agent with Respect to the Series A Preferred Stock (if other than
Computershare Trust Company, N.A.): 


Special terms and conditions: 


Closing date: June [  ], 2012


All capitalized terms used but not defined herein shall
have such meaning as ascribed thereto in the Deposit Agreement. 


Date: June [  ], 2012. 




	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    

  	
    

  
	
   

  	
    

  	
  Name:

  Title: