Exhibit 4.9
McMoRan Exploration Co.
and
_____________________________________
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of __________________,
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
"Certificate of Designations" 1
"Certificate of Incorporation" 1
"Company" 1
"Corporate Office" 1
"Deposit Agreement" 2
"Depositary" 2
"Depositary Share" 2
"Depositary's Agent" 2
"New York office" 2
"Receipt" 2
"record holder" 2
"Registrar" 2
"Securities Act" 2
"Stock" 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts 3
SECTION 2.02 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof 3
SECTION 2.03 Redemption, Exchange and Conversion of Stock 4
SECTION 2.04 Register of Transfer of Receipts 6
SECTION 2.05 Combination and Split-ups of Receipts 6
SECTION 2.06 Surrender of Receipts and Withdrawal of Stock 7
SECTION 2.07 Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of
Receipts and Withdrawal or Deposit of Stock 7
SECTION 2.08 Lost Receipts, etc 8
SECTION 2.09 Cancellation and Destruction of Surrendered
Receipts 8
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other Information 9
SECTION 3.02 Payment of Taxes or Other Governmental Charges 9
SECTION 3.03 Withholding 9
SECTION 3.04 Representations and Warranties as to Stock 9
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions 10
SECTION 4.02 Distributions Other Than Cash 10
SECTION 4.03 Subscription Rights, Preferences or Privileges 10
SECTION 4.04 Notice of Dividends, Fixing of Record Date for
Holders of Receipts 11
SECTION 4.05 Voting Rights 11
SECTION 4.06 Changes Affecting Stock and Reclassification,
Recapitalization, etc 12
SECTION 4.07 Reports 12
SECTION 4.08 Lists of Receipt Holders 12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies, Transfer Books
by the Depositary; the Xxxxxxxxx 00
SECTION 5.02 Prevention or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company 13
SECTION 5.03 Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company 14
SECTION 5.04 Resignation and Removal of the Depositary, Appointment of
Successor Depositary 15
SECTION 5.05 Corporate Notices and Reports 16
SECTION 5.06 Deposit of Stock by the Company 16
SECTION 5.07 Indemnification by the Company 16
SECTION 5.08 Fees, Charges and Expenses 16
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment 17
SECTION 6.02 Termination 17
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts 18
SECTION 7.02 Exclusive Benefits of Parties 18
SECTION 7.03 Invalidity of Provisions 18
SECTION 7.04 Notices 18
SECTION 7.05 Depositary's Agents 19
SECTION 7.06 Holders of Receipts Are Parties 19
SECTION 7.07 Governing Law 19
SECTION 7.08 Headings 19
TESTIMONIUM 20
SIGNATURES 20
EXHIBIT A 21
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of _________________ among McMoRan
Exploration Co., a Delaware corporation, _____________________ , a
_____________banking corporation, as Depositary, and all holders from time to
time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of the Stock with the Depositary,
as agent for the beneficial owners of the Stock, for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of the Receipts
evidencing Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form annexed as
Exhibit A 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:
"Certificate of Designations" shall mean the Certificate of Designations
establishing and setting forth the rights, preferences, privileges and
limitations of the Stock.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation, as amended and restated from time to time, of the Company.
"Company" shall mean McMoRan Exploration Co., a Delaware corporation,
and its successors.
"Corporate Office" shall mean the office of the Depositary in
________________. _______________ 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
______________________.
"Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
"Depositary" shall mean _________________, as Depositary hereunder, and
any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the Receipts
executed and delivered hereunder, including the interests in Stock granted to
holders of Receipts pursuant to the terms and conditions of the Deposit
Agreement. Each Depositary Share shall represent an interest in _____ of a
share of 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 Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each record holder
of a Receipt evidencing a Depositary Share or Shares is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented by such Depositary Share or Shares, including the dividend,
conversion, exchange, voting and liquidation rights contained in the
Certificate of Designations, and to the benefits of all obligations and duties
of the Company in respect of the Stock under the Certificate of Designations
and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.05.
"New York Office" shall mean the office maintained by the Depositary in
the Borough of Manhattan, The City of New York, which at the date of this
Deposit Agreement is located at ___________________________.
"Receipt" shall mean a Depositary Receipt executed and delivered
hereunder, in substantially the form of Exhibit A hereto, evidencing
Depositary Share or Shares, as the same may be amended from time to time in
accordance with the provisions hereof.
"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 or on
behalf of the Depositary for such purpose.
"Registrar" shall mean any bank or trust company appointed to register
ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's [ ].
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts shall be engraved
or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the Depositary by the
manual signature of a duly authorized officer of the Depositary; provided,
however, that such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any
purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts bearing the
facsimile signature of anyone who was at any time a duly authorized officer of
the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their execution.
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 Depositary or required to
comply with any applicable law or regulation or with the rules and regulations
of any securities exchange upon which the Stock or the Depositary Shares 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 by reason of the date of issuance of the Stock or otherwise.
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 shall be transferable by delivery with the same effect
as in the case of investment securities in general; provided, however, that
the Depositary may, notwithstanding any notice to the contrary, treat the
record holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement
and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Stock may deposit such Stock under
this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a properly executed instrument of transfer
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 order of the Company
or such holder, as the case may be, 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 number of Depositary Shares representing
such deposited Stock.
Upon receipt by the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents specified
above, the Depositary shall, as soon as transfer and registration can be
accomplished, present such certificate or certificates to the registrar and
transfer agent of the Stock for transfer and registration in the name of the
Depositary or its nominee of the Stock being deposited. Deposited Stock shall
be held by the Depositary in an account to be established by the Depositary at
the corporate office.
Upon receipt by the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents specified
above, 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 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 New York
Office, except that, at the request, risk and expense of any person requesting
such delivery and for the account of such person, such delivery may be made at
such other place as may be designated by such person. In each case, delivery
will be made only upon payment by such person to the Depositary of all taxes
and other governmental charges and any fees payable in connection with such
deposit and the transfer of the deposited Stock.
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. Redemption, Exchange and Conversion of Stock. Whenever
the Company shall elect to redeem or exchange or be required to convert shares
of Stock in accordance with the Certificate of Designations, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption, exchange or conversion
of Stock and the simultaneous redemption, exchange or conversion of the
Depositary Shares representing the Stock to be redeemed, exchanged or
converted and of the number of such shares of Stock held by the Depositary to
be redeemed, exchanged or converted. The Depositary shall, as directed by the
Company in writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed simultaneous
redemption, exchange or conversion of the Depositary Shares representing the
Stock to be redeemed, exchanged or converted, not less than 15 and not more
than 60 days prior to the date fixed for redemption, exchange or conversion of
such Stock and Depositary Shares, to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, exchanged or converted, at
the addresses of such holders as the same appear on the records of the
Depositary; provided, that if the effectiveness of a Merger or consolidation
(as defined in the Certificate of Designations) makes it impracticable to
provide at least 15 days' notice, the Depositary shall provide such notice as
soon as practicable prior to such effectiveness. Any such notice shall also
be published in the same manner as notices of redemption, exchange or
conversion of Stock are required to be published pursuant to Section _____ of
the Certificate of Designations. Notwithstanding the foregoing, neither
failure to mail or publish any such notice to one or more such holders nor any
defect in any notice shall affect the sufficiency of the proceedings for
redemption, exchange or conversion. The Company shall provide the Depositary
with such notice, and each such notice shall state: the redemption, exchange
or conversion date; the number of Depositary Shares to be redeemed, exchanged
or converted; if fewer than all the Depositary Shares held by any holder are
to be redeemed or exchanged, the number of such Depositary Shares held by such
holder to be so redeemed or exchanged; in the case of a call for redemption,
the call price payable upon redemption (and the form of consideration, whether
cash, securities or other consideration, on which the redemption call Price
will be paid), the place or places where Receipts evidencing Depositary Shares
to be redeemed, exchanged or converted are to be surrendered for redemption,
exchange or conversion; whether the Company is depositing with a bank or trust
company on or before the redemption, exchange or conversion date, the cash
payable by the Company and the proposed date of such deposit; the amount of
accrued and unpaid dividends payable per share of Stock to be redeemed,
exchanged or converted to and including such redemption, exchange or
conversion date, as the case may be, and that dividends in respect of the
Stock represented by the Depositary Shares to be redeemed, exchange or
converted will cease to accrue on such redemption, exchange or conversion date
(unless the Company shall default in delivering cash at the time and place
specified in such notice). On the date of any such redemption, exchange or
conversion, the Depositary shall surrender the certificate or certificates
held by the Depositary evidencing the number of shares of Stock to be
redeemed, exchanged or converted in the manner specified in the notice of
redemption, exchange or conversion of Stock provided by the Company pursuant
to Section ____ of the Certificate of Designations. The Depositary shall,
thereafter, redeem, exchange or convert the number of Depositary Shares
representing such redeemed, exchanged or converted Stock upon the surrender of
Receipts evidencing such Depositary Shares in the manner provided in the
notice sent to record holders of Receipts. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by the Depositary by lot or on a pro rata basis at
the direction of the Company.
Notice having been mailed and published by the Depositary as aforesaid,
from and after the redemption, exchange or conversion date (unless the Company
shall have failed to redeem, exchange or convert the shares of Stock to be
redeemed, exchanged or converted by it upon the surrender of the certificate
or certificates therefor by the Depositary as described in the preceding
paragraph), the Depositary Shares called for redemption or exchange or subject
to conversion 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 cash, securities or Form of consideration payable upon redemption,
exchange or conversion upon surrender of such Receipts) 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 shall so require), such
Depositary Shares shall be converted into or redeemed or exchanged for shares
of Stock at a rate equal to ______ of the number of shares of Stock delivered,
and the holders thereof shall be entitled to ____________of the cash payable,
in respect of the shares of Stock pursuant to the Certificate of Designation.
The foregoing shall be subject further to the terms and conditions of the
Certificate of Designations.
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
Price (whether to be paid in the form of cash, shares of Stock or other form
or forms of consideration) and all accrued and unpaid dividends to and
including the date fixed for redemption payable in respect of the Depositary
shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
To the extent that Depositary Shares are converted into shares of Stock
and all of such shares of Stock cannot be distributed to the record holders of
Receipts converted or called for redemption without creating fractional
interests in such shares, the Company may distribute, or cause to be
distributed, cash to such holders in lieu of delivery of such fractional
shares or, if the Company elects not to make or cause to be made such a
distribution, the Depositary may, with the consent 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 such shares of
Stock at such place or places and upon such terms as it may deem proper, and
the net proceeds of any such sale shall, subject to Section 3.02, be
distributed or made available for distribution to such record holders that
would otherwise receive fractional interests in such shares of Stock.
The Depositary shall not be required (a) to issue, transfer or exchange
any Receipts for a period beginning at the opening of business 15 days next
preceding any selection of Depositary Shares and Stock to be redeemed and
ending at the close of business on the day of the mailing of notice of
redemption of Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption, in whole or in part, or subject to conversion except as provided
in the second preceding paragraph of this Section 2.03.
SECTION 2.04. Register 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 at
the Corporate Office, the New York Office or such other office as the
Depositary may designate for such purpose, by the record holder in person or
by a duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer, together with evidence of the payment of any
transfer taxes as may be required by 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. Combination and Split-ups of Receipts. Upon surrender of
a Receipt or Receipts at the Corporate Office, the New York 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; provided, however, that the Depositary shall not issue any
Receipt evidencing a fractional Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of Stock. Any holder
of a Receipt or Receipts may withdraw any or all of the Stock (but only in
whole shares of Stock) represented by the Depositary Shares evidenced by such
Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office, the New York Office or at such other office as the Depositary may
designate for such withdrawals. 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 whole number of
shares of 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. 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 whole Depositary Shares
representing the whole number of shares of Stock to be withdrawn, the
Depositary shall at the same time, in addition to such whole number of shares
of 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 whole Depositary Shares. Delivery
of the 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 proper instruments of transfer.
If the 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 Stock, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
The Depositary shall deliver the Stock and the money and other property,
if any, represented by the Depositary Shares evidenced by Receipts surrendered
for withdrawal, without unreasonable delay, at the office at which such
Receipts were surrendered, 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, without unreasonable delay, at such
other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts and Withdrawal or Deposit of
Stock. As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination, surrender or exchange of any Receipt, the
delivery of any distribution thereon or the withdrawal or deposit of Stock,
the Depositary, any of the Depositary's Agents 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 Stock
being deposited or withdrawn or with respect to the Stock or other securities
or property of the Company being issued upon conversion or redemption); (ii)
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) compliance with such reasonable regulations, if any,
as the Depositary or the Company may establish not inconsistent with the
provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock or the registration of transfer, split-up, combination, surrender or
exchange of outstanding Receipts and the withdrawal of deposited Stock may be
suspended (i) during any period when the register of stockholders of the
Company is closed, (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration statement
under the Securities Act is in effect as to such shares of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary shall 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 unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of
such destruction, loss or theft of such Receipt, of the authenticity thereof
and of his ownership thereof, (ii) reasonable indemnification satisfactory to
the Depositary or the payment of any charges incurred by the Depositary in
obtaining insurance in lieu of such indemnification and (iii) payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.09. 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 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
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or other information, to
execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt,
the registration of transfer, redemption, conversion or exchange of any
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) any Receipt, (ii) the Depositary Shares
evidenced by such Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the
holder of such Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer of any Receipt or any
split-up or combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused, any dividend or other distribution may be withheld and
any part or all of the 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 prior to
such sale). Any dividend or other distribution so withheld and the proceeds
of any such sale may be applied to any payment of such tax or other
governmental charge, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Withholding. The Depositary shall act as the tax
withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the Stock represented
thereby (collectively, the "Securities"). The Depositary shall be responsible
with respect to the Securities for the timely (i) collection and deposit of
any required withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other applicable)
taxing authorities.
SECTION 3.04. Representations and Warranties as to Stock. In the case
of the initial deposit of the Stock, the Company and, in the case of
subsequent deposits thereof, each person so depositing Stock under this
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and warranties
shall survive the deposit of the Stock and the issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the 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
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 does withhold from any cash dividend or other
cash distribution in respect of the Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or
make available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of Depositary
Shares a fraction of one cent and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash, rights, preferences or
privileges upon the 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 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 Company after
consultation with the Depositary, such distribution cannot be made
proportionately among such record holders, or if for any other reason
(including any tax withholding or securities law requirement), the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company which approval
shall not be unreasonably withheld, 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, 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
3.02, 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.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is registered on the books of the Company any rights, preferences
or privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the company shall instruct
(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 and instructs the Depositary that it is not lawful or feasible to
make such rights, preferences or privileges available to some or all 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, in each case,
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 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.
If 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 such securities, the Company shall promptly
file 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 unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of the
Securities Act.
If any other action under the law 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, the Company agrees with the Depositary that the Company
will use its reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date for Holders of
Receipts. Whenever (i) any cash dividend or other cash distribution shall
become payable, or any distribution other than cash shall be made, or any
rights, preferences or privileges shall at any time be offered, with respect
to the Stock, or (ii) the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice or of the mandatory conversion of, or any election on the
part of the Company to call for the redemption or exchange of, any shares of
Stock, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts (x) who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) 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 of such conversion, exchange
or redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice,
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, the Certificate of Incorporation or the Certificate of
Designations, to instruct the Depositary as to the exercise of the voting
rights pertaining to the 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 endeavor insofar as practicable to vote or
cause to be voted the Stock represented by the Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request.
The Company hereby agrees to take all reasonable action that may be deemed
necessary by the Depositary in order to enable the Depositary to vote such
Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassification,
Recapitalize, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it is
a party or sale of all or substantially all of the Company's assets, the
Depositary shall 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 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 or in respect of such
Stock. In any such case the Depositary may, in its discretion, with the
approval of the Company, execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited property.
SECTION 4.07. Reports. The Company or, at the option of the Company,
the Depositary shall forward to the holders of Receipts any reports and
communications received from the Company that are received by the Depositary
as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
At the expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary, any Depositary's Agent or
the Registrar, take copies thereof and require the Depositary, any
Depositary's Agent or the Registrar to supply copies of such portions of such
records as the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, Transfer Books by the
Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the New York
Office facilities for the execution and delivery, registration, registration
of transfer, surrender and exchange, split-up, combination, redemption,
exchange and conversion of Receipts and deposit and withdrawal of Stock and
(ii) at the Corporate Office and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration, registration of transfer,
surrender and exchange, split-up, combination, conversion, exchange and
redemption of Receipts and deposit and withdrawal of Stock, all in accordance
with the provisions of this Deposit Agreement.
The Depositary, acting as transfer agent and Registrar, 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; provided that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares. The Depositary shall consult with the Company upon
receipt of any request for inspection. 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.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more stock
exchanges, the Depositary shall, with the approval of the Company, appoint a
Registrar for registry of such Receipts or Depositary Shares in accordance
with the requirements of such exchange or exchanges. Such Registrar (which
may be the Depositary if so permitted by the requirements of such exchange or
exchanges) may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company. In addition,
if the Receipts, such Depositary Shares or such Stock are listed on one or
more stock exchanges, the Depositary will, at the request of the Company,
arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange, split-up, combination, redemption or
conversion of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable stock exchange regulations.
SECTION 5.02. Prevention of Delay in Performance by the Depositary, The
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Registrar or any Depositary's Agent, by reason of any provision, present or
future, of the Certificate of Incorporation or the Certificate of Designations
or, in the case of the Company, the Depositary, the Registrar or any
Depositary's Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any Depositary's
Agent, the Registrar 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, any Depositary's
Agent, the Registrar or the Company incur any 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 that the terms of this Deposit Agreement
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, in the case of the Depositary, any Depositary's Agent or the
Registrar, if any such exercise or failure to exercise discretion is caused by
its negligence or bad faith.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the Receipts to
holders or other persons, except to perform in good faith such obligations as
are specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding with respect to Stock, Depositary Shares
or Receipts that 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 the Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the advice of or information from legal counsel, accountants,
any person presenting Stock for deposit, any holder of a Receipt or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary, any Depositary's Agent, the Registrar and the
company may each rely and shall each be protected in acting 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, the Registrar and any Depositary's Agent may own and
deal in any class of securities of the Company and its affiliates and in
Receipts or Depositary Shares. The Depositary may also act as transfer agent
or registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
nor the Registrar shall be deemed to be an "issuer" of the Stock, the
Depositary Shares or the Receipts or other securities issued upon conversion,
exchange or redemption of the Stock under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent and the Registrar are acting
only in a ministerial capacity; 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.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent nor the Registrar makes any representation or has
any responsibility as to the validity of the Registration Statement pursuant
to which the Depositary Shares are registered under the Securities Act, the
Stock, the Depositary Shares 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 Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder
or of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title
or interest of the record holders of Receipts in and to the Depositary Shares
except that the Depositary hereby represents and warrants as follows: (i) the
Depositary has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its incorporation, with full
power, authority and legal right under such law to execute, deliver and carry
out the terms of this Deposit Agreement; (ii) this Deposit Agreement has been
duly authorized, executed and delivered by the Depositary; and (iii) this
Deposit Agreement constitutes a valid and binding obligation of the
Depositary, enforceable against the Depositary in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors,
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Depositary shall not be accountable for
the use or application by the Company of the Depositary Shares or the Receipts
or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary, Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice via registered mail 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 written
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, or an affiliate of 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 or removed
Depositary may 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, shall duly assign, transfer and
deliver all rights, title and interest in the Stock and any moneys or property
held hereunder to such successor and shall deliver to such successor a list of
the record holders of all outstanding Receipts. Any successor depositary
shall promptly mail notice of its appointment to the record holders of
Receipts.
Any corporation 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. Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at
the 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 upon which the Stock, the Depositary Shares or
the Receipts are listed or by the Certificate of Incorporation and the
Certificate of Designations to be furnished by the Company to holders of
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. Deposit of Stock by the Company. The Company agrees with
the Depositary that neither the Company nor any company controlled by the
Company will at any time deposit any Stock if such Stock is required to be
registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against,
and hold each of them harmless from, any liability, costs and expenses
(including reasonable fees and expenses of counsel) that may arise out of or
in connection with its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of negligence, bad faith or willful misconduct on the
part of any such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees, charges and expenses
of the Depositary or any Depositary's Agent hereunder or of any Registrar
shall be payable by any person other than the Company, except for any taxes
and other governmental charges and except as provided in this Deposit
Agreement. If, at the request of a holder of a Receipt, the Depositary incurs
fees, charges or expenses for which it is not otherwise liable hereunder, such
holder or other person will be liable for such fees, charges and expenses.
All other fees, charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, reasonable fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid from time to time upon consultation and
agreement between the Depositary and the Company as to the amount and nature
of such fees, charges and expenses.
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 that
shall materially and adversely alter the rights of the holders of Receipts
shall be effective as to outstanding Receipts until the expiration of 90 days
after notice of such amendment shall have been given to the record holders of
outstanding Receipts and unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares outstanding. Every
holder of an outstanding Receipt at the time 90 days after such notice of
amendment shall have been given 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. In no event shall any amendment impair
the right, subject to the provisions of Sections 2.03, 2.06 and 2.07 and
Article III, of any owner of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares with instructions to the Depositary to
deliver to the holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law.
SECTION 6.02. Termination. Whenever so directed by the Company, the
Depositary will terminate this Deposit Agreement by mailing notice of such
termination to the record holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate this Deposit Agreement if at any time 45
days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as provided in
Section 5.04.
If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Depositary thereafter shall discontinue the
transfer of Receipts, shall suspend the distribution of dividends to the
holders thereof and shall not give any further notices (other than notice of
such termination) or perform any further acts under this Deposit Agreement,
except as provided below and that the Depositary shall continue to collect
dividends and other distributions pertaining to Stock, shall sell rights,
preferences or privileges as provided in this Deposit Agreement and shall
continue to deliver the Stock and any money and other property represented by
Receipts, without liability for interest thereon, upon surrender thereof by
the holders thereof. At any time after the expiration of two years from the
date of termination, the Depositary may sell Stock then held hereunder at
public or private sale, at such places and upon such terms as it deems proper
and may thereafter hold in a segregated account the net proceeds of any such
sale, together with any money and other property held by it hereunder, without
liability for interest, for the benefit, pro rata in accordance with their
holdings, of the holders of Receipts that have not heretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement except to account for such net
proceeds and money and other property. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and 5.08. In the
event this Deposit Agreement is terminated, the Company hereby agrees to use
its best efforts to list the underlying Stock on the New York Stock Exchange,
Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed by
the Company and the Depositary in 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 telecopier shall be effective as delivery of a manually
executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the corporate office and
the New York Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
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. Any notices to be given to the Company hereunder
or under the Receipts shall be in writing and shall be deemed to have been
duly given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to the Company at 0000 Xxxxxxx Xx.,
Xxx Xxxxxxx, Xxxxxxxxx 00000, Attention: Secretary, or at any other place to
which the Company may have transferred its principal executive office.
Any 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 telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
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 mail, or by telegram or telex or telecopier
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 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 telegram or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a duly addressed letter confirming an earlier notice
in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex or telecopier message received by
it from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may, with the
approval of the Company which approval shall not be unreasonably withheld,
from time to time appoint one or more Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
vary or terminate the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties. Notwithstanding that
holders of Receipts have not executed and delivered this Deposit Agreement or
any counterpart thereof, the holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of
the terms and conditions, and be entitled to all of the benefits, hereof and
of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. 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 law of the State
of New York without giving effect to principles of conflict of laws.
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, McMoRan Exploration Co. and
____________________________ have duly executed this Deposit Agreement as of
the day and year first above set forth and all holders of Receipts shall
become parties hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
McMoRan Exploration Co.
Attest:
By:
Authorized Officer
Attest:
By:
Authorized Officer
EXHIBIT A
SEE EXHIBIT 4.10
