Exhibit 4.12





                         


 


Exhibit 4.12


 


FORM OF DEPOSIT AGREEMENT

 


            This DEPOSIT AGREEMENT (“Deposit Agreement”) is made
and entered into as of                        , 20  , by and among Southern
First Bancshares, Inc., a South Carolina corporation, [          ], and all
holders from time to time of Receipts (as hereinafter defined) issued
hereunder.

 


WITNESSETH:

 


            WHEREAS, it is desired to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of               shares of Preferred
Stock (as hereinafter defined) with the Depositary (as hereinafter defined) for
the purposes set forth in this Deposit Agreement and for the issuance hereunder
of the Receipts evidencing Depositary Shares (as hereinafter defined), on the
date hereof representing a fractional interest in the deposited Preferred
Stock; and

 


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

 


            NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:

 


ARTICLE I 



DEFINITIONS

 


            The following definitions shall apply to the respective
terms (in the singular and plural forms of such terms) used in this Deposit
Agreement and the Receipts:

 


            “Articles of Incorporation” shall mean the Articles
of Incorporation of the Company, as amended and supplemented from time to time.

 


            “Articles of Amendment” shall mean the Articles of
Amendment filed by the Company with the Secretary of State of the State of
South Carolina designating        shares of preferred stock of the Company as
Preferred Stock.

 


            “Company” shall mean Southern First Bancshares,
Inc., a South Carolina corporation, and its successors.

 


            “Corporate Office” shall mean the corporate office
of the Depositary at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at [                    ].

 


            “Depositary” shall mean [                    ], and
any successor as depositary hereunder.


 










 


 


            “Depositary Share” shall mean a 1/      fractional
interest of a share of Preferred Stock deposited with the Depositary hereunder
and the same proportionate interest in any and all other property received by
the Depositary in respect of such share of Preferred 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
Preferred Stock represented by such Depositary Share, including the dividend
and distribution, voting, redemption, conversion and liquidation rights
contained in the Articles of Amendment.

 


            “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 Receipts, as the same may be
amended, supplemented, restated or otherwise modified from time to time and any
successor agreement thereto.

 


            “Preferred Stock” shall mean shares of the Company’s
[description of preferred stock].

 


            “Receipt” shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form as set forth in Exhibit A hereto.

 


            “record date” shall mean the date fixed pursuant to Section
4.04.

 


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

 


            “redemption date” shall mean the date fixed for
redemption of Preferred Stock and Depositary Shares contemplated in Section
2.03.

 


            “Registrar” shall mean [                       ], or
any bank or trust company appointed to register ownership and transfers of
Receipts or the deposited Preferred Stock, as the case may be, as herein provided.


 


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


 










 


 


            “Signature Guarantee” shall have the meaning as set
forth in Section 2.04.

 


            “Special Damages” shall have the meaning as set
forth in Section 5.07.

 


            “Transfer Agent” shall mean [                         ],
or any bank or trust company appointed to transfer the Receipts or the
deposited Preferred Stock, as the case may be, as herein provided.

 



ARTICLE II 


FORM OF RECEIPTS, DEPOSIT OF
PREFERRED STOCK, EXECUTION AND DELIVERY,


 TRANSFER, SURRENDER AND REDEMPTION OF
RECEIPTS

 


            SECTION 2.01.   Form and Transferability of Receipts. Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form as set forth
in Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.02, 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 Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the Corporate
Office or such other offices, if any, as the Depositary may designate, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company’s expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Preferred
Stock deposited, as definitive Receipts.

 


            Receipts shall be executed by the Depositary by the manual
or facsimile signature of a duly authorized signatory of the Depositary,
provided that if a Registrar (other than the Depositary) shall have been
appointed then such Receipts shall also be countersigned by manual signature of
a duly authorized signatory of such 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 as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided.

 


            Except as the Depositary may otherwise determine, 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 as may be required by the Company or required to
comply with any applicable law or regulation or with the rules and regulations
of any securities exchange or interdealer quotation system upon which the
Preferred Stock, the Depositary Shares or the Receipts may be listed or quoted
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject, in
each case, as directed by the Company.


 










 


 


            Title to any Receipt (and to the Depositary Shares
evidenced by such Receipt) that is properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement shall be transferable
by delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until a Receipt shall be transferred on the books of
the Registrar, 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 dividends or other
distributions, the exercise of any redemption or voting rights or to any notice
provided for in this Deposit Agreement and for all other purposes.

 


            The Receipts may be issued in the form of one or more
Global Registered Receipts, in which case, the Depositary shall, in accordance
with the other provisions of this Deposit Agreement, execute and deliver one or
more Global Registered Receipts evidencing the Receipts, which (i) shall represent
the aggregate number of Depositary Shares to be represented by such 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 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.

 


            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.

 


            SECTION 2.02.   Deposit of Preferred Stock; Execution and Delivery of Receipts
in Respect Thereof. Concurrently with the execution of this Deposit
Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing ___
shares of Preferred Stock, 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 (i) all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written letter of instruction of the Company
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order a Receipt or Receipts for the
Depositary Shares representing such deposited Preferred Stock. The Depositary
acknowledges receipt of the deposited Preferred Stock and related documentation
and agrees to hold such deposited Preferred Stock in an account to be
established by the Depositary at the Corporate Office or at such other office
as the Depositary shall determine. The Company hereby appoints the Depositary
as the Registrar and Transfer Agent for the Preferred Stock deposited hereunder
and the Depositary hereby accepts such appointment and, as such, will reflect
changes in the number of shares (including any fractional shares) of deposited
Preferred Stock held by it by notation, book-entry or other appropriate method.
The Depositary also acknowledges that the Company may deposit additional shares
of Preferred Stock from time to time after the date hereof.

 


            If required by the Depositary, Preferred Stock presented
for deposit by the Company at any time, whether or not the register of
stockholders of the Company is closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
that will provide for the prompt transfer to the Depositary or its nominee of
any distribution or right to subscribe for additional Preferred Stock or to
receive other property that any person in whose name the Preferred Stock is or
has been registered may thereafter receive upon or in respect of such deposited
Preferred Stock, or in lieu thereof such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary. 

 


            Upon receipt by the Depositary of a certificate or
certificates for Preferred Stock deposited hereunder, together with the other
documents specified above, and upon registering such Preferred Stock in the
name of the Depositary, 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 2.02 a Receipt or Receipts
for the number of whole Depositary Shares representing the 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 Corporate Office, except that, at the request, risk and expense
of any person requesting such delivery, such delivery may be made at such other
place as may be designated by such person.

 


            Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of
distributions of Preferred Stock, if any, there shall be deposited hereunder
not more than the number of shares constituting the Preferred Stock as set
forth in the Articles of Amendment, as such may be amended.


 










 


 


            The Company shall deliver to the Depositary from time to
time such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.

 


            SECTION 2.03.   Optional Redemption of Preferred Stock for Cash.
Whenever the Company shall elect to redeem shares of deposited Preferred Stock
for cash in accordance with the provisions of the Articles of Amendment, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 30 days’ prior written notice of the date of such
proposed redemption and of the number of such shares of Preferred Stock held by
the Depositary to be redeemed and the applicable redemption price, as set forth
in the Articles of Amendment, including the amount, if any, of accrued and
unpaid dividends thereon to and including the date fixed for redemption. The
Depositary shall mail, first-class postage prepaid, notice of the redemption of
Preferred Stock and the proposed simultaneous redemption of the Depositary
Shares representing the Preferred Stock to be redeemed, not less than 30 nor
more than 60 days prior to the date fixed for redemption of such Preferred
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 the same appear on the records of the Depositary;
provided that if the Depositary Shares are held in the form of Global
Registered Receipts through the Global Receipt Depositary, the Company may
provide such notice of redemption in any manner permitted by such Global
Receipt Depositary. No failure to give such notice or any defect thereto or in
the mailing thereof shall affect the sufficiency of notice or validity of the
proceedings for redemption except as to a holder to whom notice was defective
or not given. A redemption notice which has been mailed in the manner provided
herein shall be conclusively presumed to have been duly given on the date
mailed whether or not the holder received the redemption notice. The Company
shall provide the Depositary with such notice, and each such notice shall
state: the redemption date; the redemption price and accrued and unpaid
dividends payable on the redemption date; the number of shares of deposited
Preferred Stock and Depositary Shares to be redeemed; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; the place or places
where Receipts evidencing the Depositary Shares to be redeemed are to be
surrendered for payment of the redemption price and accrued and unpaid
dividends payable on the redemption date; and that from and after the
redemption date dividends in respect of the Preferred Stock represented by the
Depositary Shares to be redeemed will cease to accrue. If fewer than all of the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be redeemed pro rata (as nearly as may be practicable without
creating fractional Depositary Shares) or by any other equitable method
determined by the Company.


 










 


 


            In the event that notice of redemption has been made as
described in the immediately preceding paragraph and the Company shall then
have paid or caused to be paid in full to the Depositary the redemption price
(determined pursuant to the Articles of Amendment) of the Preferred Stock
deposited with the Depositary to be redeemed (including any accrued and unpaid
dividends to and including the redemption date), the Depositary shall redeem
the number of Depositary Shares representing such Preferred Stock so called for
redemption by the Company and from and after the redemption date (unless the
Company shall have failed to pay for the shares of Preferred Stock to be
redeemed by it as set forth in the Company’s notice provided for in the
preceding paragraph), all dividends in respect of the shares of Preferred Stock
called for redemption shall cease to accrue, the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price plus all accrued and unpaid dividends to and
including the redemption date) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender in accordance with said notice of the
Receipts evidencing such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary or applicable law shall so require), such
Depositary Shares shall be redeemed at a redemption price of $  per Depositary
Share plus all accrued and unpaid dividends to and including the redemption
date. The foregoing shall be further subject to the terms and conditions of the
Articles of Amendment. In the event of any conflict between the provisions of
this Deposit Agreement and the provisions of the Articles of Amendment, the
provisions of the Articles of Amendment will govern and the Company will
instruct the Depositary accordingly.

 


            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 payment of the
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing such holder’s Depositary
Shares evidenced by such prior Receipt that are not called for redemption.

 


            The Company acknowledges that the bank accounts maintained
by the Depositary in connection with the performance of the services described
herein will be in the name of the Depositary and that the Depositary may
receive investment earnings in connection with the investment at the
Depositary’s risk and for its benefit of funds held in those accounts from time
to time.

 


            SECTION 2.04.   Registration of Transfers of Receipts. The Company
hereby appoints the Depositary as the Registrar and Transfer Agent for the
Receipts and the Depositary hereby accepts such appointment and, as such, 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 a duly authorized
attorney, agent or representative, properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement and including a
guarantee of the signature thereon by a participant in a signature guarantee
medallion program approved by the Securities Transfer Association (a “Signature
Guarantee”), together with evidence of the payment of any transfer taxes as may
be required by applicable law. Upon such surrender, the Depositary shall
execute a new Receipt or Receipts and deliver the same to or upon the order of
the person entitled thereto evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered. 

 


            SECTION 2.05.   Combinations and Split-ups of Receipts. Upon surrender
of a Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.


 










 


 


            SECTION 2.06.   Surrender of Receipts and Withdrawal of Preferred Stock.
Any holder of a Receipt or Receipts may withdraw any or all of the whole shares
of deposited Preferred Stock represented by the Depositary Shares evidenced by
such Receipt or Receipts and all money and other property, if any, represented
by such Depositary Shares by surrendering such Receipt or Receipts at the
Corporate Office or at such other office as the Depositary may designate for
such withdrawals. Fractional shares of Preferred Stock may not be withdrawn by
any holder. After such surrender, 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 such Preferred
Stock and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole shares of Preferred Stock will not
thereafter be entitled to deposit such Preferred Stock hereunder or to receive
Depositary Shares therefor. If the Receipt or Receipts delivered by the holder
to the Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of deposited Preferred Stock to be withdrawn, the
Depositary shall at the same time, in addition to such number of whole shares
of Preferred Stock and such money and other property, if any, to be withdrawn,
deliver to such holder, or (subject to Section 2.04) upon his order, a new
Receipt or Receipts evidencing such excess number of Depositary Shares.
Delivery of such Preferred Stock and such money and other property being
withdrawn may be made by the delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate, which, if
required by the Depositary, shall be properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement.

 


            If the deposited Preferred Stock and the money and other
property being withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered for withdrawal
of 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 whole
shares of Preferred Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer or endorsement in blank with a
Signature Guarantee.

 


            The Depositary shall deliver the whole shares of deposited
Preferred Stock and the money and other property, if any, represented by the
Depositary Shares evidenced by Receipts surrendered for withdrawal at the
Corporate 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 2.07.   Limitations on Execution and Delivery, Transfer, Split-up,
Combination. As a condition precedent to the execution and delivery,
transfer, split-up, combination, surrender or exchange of any Receipt, the
Depositary or the Company may require any or all of the following: (i) 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
tax or other governmental charge with respect thereto (including any such tax
or charge with respect to the Preferred Stock being withdrawn); (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any signature (or the authority of any signature), including a Signature
Guarantee; and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions of this
Deposit Agreement and as may be required by any securities exchange upon which
the deposited Preferred Stock, the Depositary Shares or the Receipts may be
included for quotation or listed.

 


            The transfer of Receipts may be refused, and the transfer,
split-up, combination, surrender, exchange or redemption 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
reasonably necessary or advisable by the Depositary or the Company at any time
or from time to time because of any requirement of applicable law or of any
government or governmental body or commission, or under any provision of this
Deposit Agreement. 

 


            SECTION 2.08.   Lost Receipts, etc. In case any
Receipt shall be mutilated or destroyed or 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, provided that the
holder thereof provides the Depositary with (i) evidence reasonably
satisfactory to the Depositary of such destruction, loss or theft of such
Receipt, of the authenticity thereof and of his ownership thereof and (ii)
reasonable indemnification and the provision of an open penalty surety bond, in
each case, satisfactory to the Depositary and the Company and holding the
Depositary and the Company harmless. 


 










 


 


            SECTION 2.09.   Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary shall be cancelled
by the Depositary. Except as prohibited by applicable law or regulation, the
Depositary is authorized to destroy such Receipts so cancelled. 

 



ARTICLE III 


CERTAIN OBLIGATIONS OF HOLDERS OF
RECEIPTS AND THE COMPANY

 


            SECTION 3.01.   Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence or other information and to execute such certificates as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt,
the transfer, redemption or exchange of any Receipt, the withdrawal of the
deposited Preferred Stock represented by the Depositary Shares evidenced by any
Receipt, the distribution of any 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.

 


            SECTION 3.02.   Payment of Fees and Expenses. Holders of Receipts shall
be obligated to make payments to the Depositary of certain fees and expenses,
as provided in Section 5.08, or provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused, any distribution may be withheld, and any part or
all of the Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder a
reasonable number of days prior to such sale). Any distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.

 


            SECTION 3.03.   Representations and Warranties as to Preferred Stock.
In the case of the initial deposit of the Preferred Stock hereunder, the
Company shall be deemed thereby to represent and warrant that the Preferred
Stock and each certificate therefor are valid and that such deposit has been
duly authorized. The Company hereby further represents and warrants that such
Preferred Stock is validly issued, fully paid and non-assessable. Such
representations and warranties shall survive the deposit of the Preferred Stock
and the issuance of Receipts.

 


            SECTION 3.04.   Representation and Warranty as to Receipts and Depositary
Shares. The Company hereby represents and warrants that the Receipts,
when issued, will evidence legal and valid interests in the Depositary Shares
and each Depositary Share will represent a legal and valid fractional interest
in a share of deposited Preferred Stock represented by such Depositary Share.
Such representation and warranty shall survive the deposit of the Preferred
Stock and the issuance of Receipts evidencing the Depositary Shares.

 


                                                                                                                                                        



 










 


 


ARTICLE IV 


THE PREFERRED STOCK; NOTICES


 


 


            SECTION 4.01.   Dividends and Other Cash Distributions. Whenever the Depositary
shall receive any dividend or other cash distributions on the deposited
Preferred Stock, including any cash received upon redemption of any shares of
Preferred Stock pursuant to Section 2.03, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of such sum as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that, in
case the Company or the Depositary shall be required by law to withhold and
shall withhold from any cash distribution in respect of the Preferred Stock an
amount on account of taxes or as otherwise required by law, regulation or court
process, 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
Receipts a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.

 


            SECTION 4.02.   Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash on the deposited Preferred
Stock, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of the securities or other 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
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If in the opinion of the Depositary after consultation with
the Company, such distribution cannot be made proportionately among such record
holders, 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 other
property thus received, or any part thereof, at such place or places and upon
such terms as the Depositary may deem proper. The net proceeds of any such sale
shall, subject to Section 3.02, be distributed or made available for distribution,
as the case may be, by the Depositary to record holders of Receipts as provided
by Section 4.01 in the case of a distribution received in cash. The Depositary
shall not be obligated hereunder to make any distribution of such securities to
the holders of Receipts unless the Company shall have provided to the
Depositary, upon request of the Depositary, an opinion of counsel stating that
such securities have been registered under the Securities Act or do not need to
be registered thereunder in order to be freely transferable.


 










 


 


            SECTION 4.03.   Subscription Rights, Preferences or Privileges. If the Company shall at any time offer or cause to
be offered with respect to the deposited Preferred Stock any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, the offering of such
rights, preferences or privileges shall in each such instance be communicated
to the Depositary and thereafter made available by the Depositary to the record
holders of Receipts in such manner as the Company shall instruct (including by
the issue to such record holders of warrants representing such rights,
preferences or privileges); provided, however, that (a) if at the time of issue
or offer of any such rights, preferences or privileges the Company determines
upon advice of its legal counsel that it is not lawful or feasible to make such
rights, preferences or privileges available to the holders of Receipts (by the
issue of warrants or otherwise) or (b) if and to the extent instructed by
holders of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if so instructed by the Company, and if
applicable laws or the terms of such rights, preferences or privileges so permit,
sell such rights, preferences or privileges of such holders 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 Section 3.01 and
Section 3.02, be distributed by the Depositary to the record holders of
Receipts entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Depositary shall not be obligated hereunder
to make any distribution of such rights, preferences or privileges, unless the
Company shall have provided to the Depositary, upon request of the Depositary,
an opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act or do not need to be registered thereunder
in order to be freely transferable.

 


            SECTION 4.04.   Notice of Distributions; Fixing of Record Date for Holders of
Receipts. Whenever any dividend or other cash distributions shall
become payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited Preferred Stock, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Stock are entitled to vote
or of which holders of such Preferred Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any shares of such Preferred
Stock, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date, if any, fixed by the Company with
respect to the Preferred Stock) for the determination of the holders of
Receipts (a) who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, (b)
who shall be entitled to give instructions for the exercise of voting rights at
any such meeting or to receive notice of such meeting or (c) whose Depositary
Shares are to be so redeemed.

 


            SECTION 4.05.   Voting Rights. Upon receipt of notice of any meeting at which the
holders of deposited Preferred Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, to instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Preferred Stock represented by
their respective Depositary Shares and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request of a holder
of a Receipt on such record date, the Depositary shall vote or cause to be
voted the amount of Preferred Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. To the extent any such instructions request the voting of a fractional
interest of a share of deposited Preferred Stock, the Depositary shall
aggregate such interest with all other fractional interests resulting from
requests with the same voting instructions and shall vote the number of whole
votes resulting from such aggregation in accordance with the instructions
received in such requests. The Company hereby agrees to take all reasonable
action that may be reasonably deemed necessary by the Depositary in order to
enable the Depositary to vote such Preferred Stock or cause such Preferred
Stock to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting to the extent of the Preferred
Stock represented by the Depositary Shares evidenced by such Receipt. The
Depositary shall not be required or allowed to exercise discretion in voting
any Preferred Stock represented by the Depositary Shares evidenced by such
Receipt.


 










 


 


 


            SECTION 4.06.   Changes Affecting Preferred Stock;
Reclassifications, Recapitalizations, etc. Upon any change in par or stated value, split-up, combination or any
other reclassification of Preferred Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which the Company is a party, or upon the sale of all or substantially all
of the Company’s assets, the Depositary shall, upon the instructions of the
Company, (i) make such adjustments in (a) the fraction of an interest
represented by one Depositary Share in one share of Preferred Stock and (b) the
ratio of the redemption price per Depositary Share to the redemption price of a
share of Preferred Stock, in each case as may be required by or as is
consistent with the provisions of the Articles of Amendment to fully reflect
the effects of such change in liquidation preference, split-up, combination or
other reclassification of stock, or of such recapitalization, reorganization,
merger, amalgamation, consolidation, or of such sale and (ii) treat any shares
of stock or other securities or property (including cash) that shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Preferred Stock as new deposited property under this Deposit Agreement,
and Receipts then outstanding shall thenceforth represent the proportionate
interests of holders thereof in the new deposited property so received in
exchange for or upon conversion of or in respect of such Preferred 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 property. 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 Preferred Stock, or any such recapitalization,
reorganization, merger, amalgamation or consolidation, or any such sale of
substantially all the assets of the Company to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Preferred
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 deposited Preferred Stock evidenced by such Receipts might have been
converted or for which such Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction,
subject to any subsequent change in par or stated value, split-up, combination
or other reclassification or any subsequent recapitalization, reorganization,
merger, amalgamation or consolidation or sale of substantially all the assets.
The Company shall cause effective provision to be made in the charter of the
resulting or surviving corporation (if other than the Company) for protection
of such rights as may be applicable upon exchange of the deposited Preferred
Stock for securities or property or cash of the surviving corporation in
connection with the transactions set forth above. The Company shall cause any
such surviving corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder.

 


            SECTION 4.07.   Inspection of Reports. The Depositary shall make available for inspection
by holders of Receipts at the Corporate Office and at such other places as the
Depositary may from time to time deem advisable during normal business hours any
reports and communications received from the Company that are both received by
the Depositary as the holder of the deposited Preferred Stock and made
generally available to the holders of the Preferred Stock. In addition, the
Depositary shall transmit certain notices and reports to the holders of
Receipts as provided in Section 5.05.

 


            SECTION 4.08.   Lists of Receipt Holders. Promptly upon reasonable request from time to time
by the Company, the Depositary shall furnish to the Company a list, as of a
recent date specified by the Company, of the names, addresses and holdings of
Depositary Shares of all persons in whose names Receipts are registered on the
books of the Depositary.

 


            SECTION 4.09.   Withholding. Notwithstanding any other provision of this Deposit Agreement to the
contrary, in the event that the Depositary determines that any distribution in
property is subject to any tax which the Depositary is obligated by applicable
law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary reasonably deems
necessary and practicable to pay such taxes, by public or private sale, and the
Depositary shall distribute the net proceeds of any such sale or the balance of
any such property after deduction of such taxes to the holders of Receipts
entitled thereto in proportion to the number of Depositary Shares held by them,
respectively; provided, however, that in the event the Depositary determines
that such distribution of property is subject to withholding tax only with
respect to some but not all holders of Receipts, the Depositary will use its
best efforts (i) to sell only that portion of such property distributable to
such holders that is required to generate sufficient proceeds to pay such
withholding tax and (ii) to effect any such sale in such a manner so as to
avoid affecting the rights of any other holders of Receipts to receive such
distribution in property.


 










 


 



ARTICLE V 


THE DEPOSITARY AND THE COMPANY

 


            SECTION 5.01.   Maintenance of Offices, Agencies and Transfer
Books by the Registrar. The
Depositary shall maintain at the Corporate Office facilities for the execution
and delivery, transfer, surrender and exchange, split-up, combination and
redemption of Receipts and the withdrawal of Preferred Stock.

 


            The Depositary shall keep books at the Corporate Office for
the registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts as provided by
applicable law. 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 maintain such books in customary
electronic form.

 


            If the Receipts or the Depositary Shares evidenced thereby
or the Preferred Stock represented by such Depositary Shares shall be listed on
the Nasdaq Global Select Market or any other stock exchange, or quoted on any
interdealer quotation system, the Depositary will, at the request and expense
of the Company, arrange such facilities for the delivery, transfer, surrender,
redemption and exchange of such Receipts, such Depositary Shares or such
Preferred Stock as maybe required by applicable law or applicable stock
exchange or quotation system regulations. 

 


            SECTION 5.02.   Prevention or Delay in Performance by the Depositary or the
Company.  Neither the Depositary 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 or the
Registrar, by reason of any provision, present or future, of the Articles of
Incorporation or the Articles of Amendment or, by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, the Registrar or the
Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement. 

 


SECTION 5.03. Obligations of the Depositary and the Company.  The Depositary shall at all times act in good faith
and shall use its best efforts within reasonable time limits to insure the
accuracy of all services performed pursuant to this Deposit Agreement.  The
Company assumes no obligation and shall not be subject to any liability under
this Deposit Agreement or any Receipt to holders of Receipts other than from
acts or omissions arising out of conduct constituting bad faith, gross
negligence or willful misconduct in the performance of such duties as are
specifically set forth in this Deposit Agreement. 

 


            The Company shall not be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding with respect to the
deposited Preferred Stock, Depositary Shares or Receipts that in its reasonable
opinion may involve it in expense or liability, unless indemnity reasonably
satisfactory to it against all expense and liability be furnished as often as
may be required. 


 










 


 


            The Company shall not be liable for any action or any
failure to act by it in reliance upon the advice of legal counsel or
accountants, or information provided by any holder of a Receipt or any other
person believed by it in good faith to be competent to give such advice or
information.  The Company may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties. 

 


            In the event the Depositary shall receive conflicting
claims, requests or instructions from any holders of Receipts, on the one hand,
and the Company, on the other hand, the Depositary shall be entitled to act on
such claims, requests or instructions received from the Company, and shall be
entitled to the full indemnification set forth in Section 5.06 hereof in
connection with any action so taken. 

 


            The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the deposited Preferred Stock or for
the manner or effect of any such vote made, as long as any such action or
non-action is in good faith and does not result from gross negligence or
willful misconduct of the Depositary. The Depositary undertakes to perform such
duties and only such duties as are specifically set forth in this Deposit
Agreement, and no implied covenants, obligations or liabilities shall be read
into this Deposit Agreement against the Depositary. 

 


            The Depositary, its parent, affiliate, or subsidiaries, may
own, buy, sell or deal in any class of securities of the Company and its
affiliates and in Receipts or Depositary Shares or become pecuniarily
interested in any transaction in which the Company or its affiliates may be
interested or contract with or lend money to or otherwise act as fully or as
freely as if it were not the Depositary hereunder. If so appointed, the
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates, or act in any other capacity for the Company
or its affiliates. 

 


            It is intended that the Depositary shall not be deemed to
be an “issuer” of the securities under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed that
the Depositary is acting only in a ministerial capacity as Depositary for the
deposited Preferred Stock; provided, however, that the Depositary agrees to
comply with all information reporting and withholding requirements applicable
to it under law or this Deposit Agreement in its capacity as Depositary. 

 


            The Depositary makes no representation and has no
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
deposited Preferred Stock, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement. 

 


            The Company represents that it has registered the deposited
Preferred Stock and the Depositary Shares for sale in accordance with
applicable securities laws. 

 


            SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary.  The Depositary
may at any time resign as Depositary hereunder by notice of its election to do
so delivered 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 a successor depositary 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 a successor depositary shall not have been appointed in
60 days, the resigning Depositary may, at the expense of the Company, petition
a court of competent jurisdiction to appoint 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, and shall duly assign, transfer and deliver all rights, title and
interest in the deposited 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.  Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts. 

 


            Any corporation or other legal 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.  Such successor depositary may execute the Receipts either in the
name of the predecessor depositary or in the name of the successor depositary. 

 


            SECTION 5.05.   Notices, Reports and Documents.  The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary’s books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange or interdealer quotation system upon which the Preferred
Stock, the Depositary Shares or the Receipts are listed or quoted or by the
Articles of Incorporation and the Articles of Amendment to be furnished by the
Company to holders of the deposited Preferred Stock and, if requested by the
holder of any Receipt, a copy of this Deposit Agreement, the form of Receipt,
the Articles of Amendment and the form of Preferred Stock.  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. 

 


            SECTION 5.06.   Indemnification by the Company.  The Company agrees to
indemnify the Depositary against, and hold it harmless from, any claim, action,
suit, penalty, liability, costs and expenses (including reasonable attorneys’
fees) of any kind and nature whatsoever that may arise out of, or in connection
with, its acting as Depositary under this Deposit Agreement and the Receipts,
except for any liability to the extent arising out of the willful misconduct,
gross negligence, or bad faith on the part of the Depositary. The obligations
of the Company set forth in this Section 5.06 shall survive any succession of
any Depositary or termination of this Deposit Agreement. 

 


            SECTION 5.07.   Damages.  The Depositary shall not be liable for any
incidental, indirect, special or consequential damages of any nature
whatsoever, including, but not limited to, loss of anticipated profits
(collectively, “Special Damages”), occasioned by breach of any provision of
this Deposit Agreement by the Depositary even if apprised of the possibility of
such damages.  The Company shall not be liable to the Depositary for Special
Damages occasioned by breach of any provision of this Deposit Agreement by the
Company even if apprised of the possibility of such damages. 


 










 


 


            SECTION 5.08.   Fees, Charges and Expenses.  No charges and expenses of
the Depositary hereunder shall be payable by any person, except as provided in
this Section 5.08. The Company shall pay all transfer and other taxes and
governmental charges arising solely from the existence of this Deposit Agreement.
The Company shall also pay all fees and expenses of the Depositary in
connection with the initial deposit of the Preferred Stock and the initial
issuance of the Depositary Shares evidenced by the Receipts, any redemption of
the Preferred Stock at the option of the Company and all withdrawals of the
Preferred Stock by holders of Receipts. If a holder of Receipts requests the
Depositary to perform duties not required under this Deposit Agreement, the
Depositary shall notify the holder of the expected cost of the performance of
such duties prior to the performance thereof. Upon approval of such cost by
such holder, such holder will thereafter be liable for the charges and expenses
related to such performance. All other fees and expenses of the Depositary
hereunder (including, in each case, fees and expenses of counsel) incident to
the performance of its obligations hereunder will be promptly paid by the
Company. The Depositary shall present its statement for fees and expenses to
the Company every month or at such other intervals as the Company and the
Depositary may agree. 

 


            SECTION 5.09.   Additional Depositary Rights and Duties.  The
Depositary shall: 

 


            (a)       have no duties or obligations
other than those specifically set forth herein.  Depositary shall not be liable
for any improper payment made in accordance with the information provided by
the Company;


 


            (b)       not be obligated to take any legal
action hereunder that might, in its judgment, involve any expense or liability,
unless it has been furnished with reasonable indemnity by the Company;


 


            (c)       be able to rely on and shall be
protected in acting on the written or oral instructions with respect to any
matter relating to its actions as Depositary specifically covered by this
Deposit Agreement, of any officer of the Company authorized to give
instructions;


 


            (d)       be able to rely on and shall be
protected in acting upon any certificate, instrument, opinion, notice, letter,
telegram or any other document or security delivered to it and believed by it
reasonably and in good faith to be genuine and to have been signed by the
proper party or parties;


 


            (e)       not be responsible for or liable
in any respect on account of the identity, authority or rights of any person
executing or delivering or purporting to execute or deliver any document or
property under this Deposit Agreement, and shall have no responsibility with
respect to the use or application of any property delivered by it pursuant to
the provisions hereof;


 


            (f)        be able to consult with counsel
satisfactory to it (including counsel for the Company) and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with advice or opinion of such counsel;


 


            (g)        not be liable for anything which
it may do or refrain from doing in connection with this Deposit Agreement
except for its own gross negligence, willful misconduct or bad faith;



 










 


 


            (h)        not be bound by any notice or
demand, or any waiver or modification of this Deposit Agreement or any of the
terms hereof, unless evidenced by a writing delivered to the Depositary signed
by the proper authority or authorities;


 


            (i)          have no duty to enforce any
obligation of any person to make delivery, or to direct or cause any delivery
to be made, or to enforce any obligation of any person to perform any other
act; and


 


            (j)          have the right to assume, in the
absence of written notice to the contrary from the proper person or persons,
that a fact or an event by reason of which an action would or might be taken by
the Depositary does not exist or has not occurred without incurring liability
for any action taken or omitted, or any action suffered by the Depositary to be
taken or omitted, in good faith or in the exercise of the Depositary’s best
judgment, in reliance upon such assumption.


 


ARTICLE VI


AMENDMENT AND TERMINATION

 


            SECTION 6.01.   Amendment.  The form of the Receipts and any provision
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 that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of the Depositary that are payable by the Company)
which (i) shall materially and adversely alter any substantial existing right of
the holders of Receipts or (ii) would be materially and adversely inconsistent
with the rights granted to the holders of the Preferred Stock pursuant to the
Articles of Amendment shall be effective unless such amendment shall have been
approved by the holders of Receipts evidencing at least a majority of the
Depositary Shares then outstanding.  In no event shall any amendment impair the
right, subject to the provisions of Section 2.06 and Section 2.07 and Article
III, of any holder of any Depositary Shares to surrender the Receipt evidencing
such Depositary Shares with instructions to the Depositary to deliver to the
holder the whole shares of the deposited Preferred Stock and all money and
other property if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.  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
this Deposit Agreement as amended thereby. 


            

SECTION 6.02.   Termination.  This Deposit Agreement may be terminated
by the Company upon not less than 30 days’ prior written notice to the
Depositary, whereupon the Depositary shall deliver or make available to each
holder of a Receipt, upon surrender of the Receipt held by such holder, such
number of whole or fractional shares of deposited Preferred Stock as are
represented by the Depositary Shares evidenced by such Receipt, together with
any other property held by the Depositary in respect of such Receipt.  This
Deposit Agreement will automatically terminate if (i) all outstanding
Depositary Shares shall have been (A) redeemed pursuant to Section 2.03 and/or
(B) surrendered in connection with withdrawal of Preferred Stock pursuant to
Section 2.06, or (ii) there shall have been made a final distribution in
respect of the deposited Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts entitled thereto. 


 










 


 


            Upon the termination of this Deposit Agreement, (i) the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Section 5.06 and Section
5.08 and (ii) the Depositary shall be discharged from all obligations under
this Deposit Agreement. 

 


ARTICLE VII


MISCELLANEOUS

 


            SECTION 7.01.   Counterparts.  This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page to this Deposit Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Deposit Agreement. 

 


            SECTION 7.02.   Exclusive Benefits of Parties.  This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever. 

 


            SECTION 7.03.   Invalidity of Provisions.  In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby. 

 


           
SECTION 7.04.   Notices. 
Unless otherwise expressly provided herein, all notices, requests, demands and
other communications hereunder or under the
Receipts shall be in writing, shall be delivered by hand or by First Class
Mail, postage prepaid, shall be deemed given when received and shall be
addressed to the Depositary and the Company at the respective addresses listed
below or to such other addresses as they shall designate from time to time in
writing, forwarded in like manner. 

 


If to the Depositary, to: 


[                       ]


 


If to the Company, to: 


 


Southern First
Bancshares, Inc.


100 Verdae Boulevard,
Suite 100


Greenville, South
Carolina 29606


Attention: 


 


            Any notices 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 First Class mail, postage
prepaid, addressed to such record holder at the address of such record holder
as it appears on the books of the Depositary or, if such holder shall have
filed with the Depositary in a timely manner a written request that notices
intended for such holder he mailed to some other address, at the address
designated in such request. 

 


            SECTION 7.05.   Holders of Receipts Are Parties.  The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement amid shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof. 


 










 


 


            SECTION 7.06.   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 internal laws of the
State of      , without regard to its conflicts of law provisions. 

 


            SECTION 7.07.   Inspection of Deposit Agreement and Articles of Amendment. 
Copies of this Deposit Agreement and the Articles of Amendment shall be filed
with the Depositary and shall be open to inspection during business hours at
the Corporate Office by any holder of any Receipt. 

 


            SECTION 7.08.   Headings.  The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts. 

 


            IN WITNESS WHEREOF, the Company and the Depositary have
caused this Deposit Agreement to be duly executed on their behalf 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. 

 


                                                                                                                                                                SOUTHERN
FIRST BANCSHARES, INC.

 


                                                                                                                                                                By:                                                                                           


                                                                                                                                                                      Name:


                                                                                                                                                                      Title:


 


                                                                                                                                                                [                       ],
as Depositary


                                                           


                                                                                                                                                               
By:                                                                                           



                                                                                                                                                                      Name:


                                                                                                                                                                      Title:


 

 

 

 










 
















 


 


                                                                        


 


 


EXHIBIT A


[FORM OF FACE OF RECEIPT]


DEPOSITARY SHARES


DR __________


DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH


REPRESENTING 1/_________ OF ONE SHARE OF


[DESCRIPTION OF PREFERRED STOCK],


OF


SOUTHERN FIRST BANCSHARES, INC.


INCORPORATED UNDER THE LAWS OF THE STATE OF SOUTH
CAROLINA


CUSIP _____________


SEE REVERSE FOR CERTAIN DEFINITIONS

 


            [                       ], as Depositary (the
“Depositary”), hereby certifies that Cede & Co. is the registered owner of
___ Depositary Shares (“Depositary Shares”), each Depositary Share
representing 1/___of one share of [Description of Preferred Stock], (the
“Stock”), of Southern First Bancshares, Inc. a South Carolina
corporation (the “Corporation”), on deposit with the Depositary, subject
to the terms and entitled to the benefits of the Deposit Agreement dated as of
______, 20__   (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
[_______________________]. 

 


                                                                                                                                    Dated:
___, 20__ 


                                                                                                                                    


                                                                                                                                   
[Wilmington
Trust Company], Depositary 


 


                                                                                                                                    


                                                                                                                                   
By:                                                                   




                                                                                                                                           
Authorized Officer 


 


                                                                        


 


A-1


 










 











 


 


                                                                        


 


 


[FORM OF REVERSE OF RECEIPT]


SOUTHERN FIRST
BANCSHARES, INC.


            SOUTHERN FIRST BANCSHARES, INC. 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 [DESCRIPTION OF PREFERRED STOCK] OF SOUTHERN FIRST
BANCSHARES, INC.  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 stockholder 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. 

 


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),

  
	Administrator

  	
  
	 

  	
  
	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, or

  
	
  
	 

  	
  
	 

  	
  
	 

  	
  
	 

  	
  
	 

  	
  
	 

  	
  
	 

  	
  
	 

  	
  
	 

  	
  
	 

  	
  
	 

  
	
  
	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

  






 

For value received,
___hereby sell(s), assign(s) and transfer(s) unto 


 

A-2


 










 











 



                                                 


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. 


 


 


A-3