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EXHIBIT 4.4
FORM OF
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [ ] between El Paso Energy
Corporation, a Delaware corporation, and [ ], as Depositary.
RECITALS
A. It is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of 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.
B. The Receipts are to be substantially in the form of the
Depositary Receipt 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 between 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 Depositary Receipts:
"Certificate of Designation" shall mean the Certificate of
Designation annexed as Exhibit B to this Deposit Agreement, as amended from
time to time, establishing and setting forth the rights, preferences,
privileges and limitations of the Stock.
"Certificate of Incorporation" shall mean the Restated
Certificate Incorporation, as amended from time to time, of the Company.
"Common Stock" shall mean the Company's Common Stock, par
value $3.00 per share.
"Company" shall mean El Paso Energy Corporation, a Delaware
corporation, and its successors.
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"Corporate Office" shall mean the office of the Depositary at
which at any particular time its depositary receipt business 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 [ ], and any successor as depositary
hereunder.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.
"Depositary Share" shall mean an interest in one fiftieth of
a share of Stock deposited with the Depositary hereunder, 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 and
preferences of the Stock represented by such Depositary Share, including the
dividend, voting, redemption and liquidation rights contained in the
Certificate of Designation.
"Depositary Successor" means a successor to the Depositary
taking title to the Stock in accordance with Section 5.04.
"Operating Guidelines" means the operating and administrative
procedures relating to the functions of the Depositary pursuant to this Deposit
Agreement, as agreed between the Company and the Depositary from time to time.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, a government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Receipt" shall mean a Depositary Receipt issued hereunder to
evidence one or more Depositary Shares, whether in temporary or definitive
form.
"Record 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.
"Registrar" shall mean any qualified Person appointed by the
Company to register ownership of Receipts as herein provided.
"Securities" shall have the meaning assigned to it in
Section 3.02.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
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"Stock" shall mean shares of the Company's __% Senior
Cumulative Exchangeable Preferred Stock, par value $.01 per share, heretofore
validly issued, fully paid and nonassessable.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
underlying tint 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. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company or any holder
of Stock, as the case may be, delivered for deposit in compliance with Section
2.02, shall execute and deliver temporary Receipts that are 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 an office described in the second to last paragraph of Section
2.02, 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 to the holder thereof. Until so exchanged, the temporary Receipts shall
in all respects be entitled to the same benefits under this Agreement, and with
respect to the Stock deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized signatory 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 signatory 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.
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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 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, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject 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 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 Depositary as provided in Section 2.04, 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
distribution 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. On the date any Stock is initially issued by the
Company, the Depositary, upon receipt of a written order from the Company and a
certificate or certificates for the Stock to be deposited under this Deposit
Agreement in accordance with the provisions of this Section, shall execute and
deliver a Receipt or Receipts for the number of Depositary Shares representing
such deposited Stock to the person or persons stated in such order.
Subject to the terms and conditions of this Deposit
Agreement, 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 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 order 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.
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If required by the Depositary, Stock presented for deposit 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 dividend or right to subscribe for
additional Stock or to receive other property that any person in whose name the
Stock is or has been registered may thereafter receive upon or in respect of
such deposited 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 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 or second 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 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. 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 reasonably request to enable
the Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.03. Redemptions and Exchanges of Stock. Whenever
the Company shall elect to redeem or exchange shares of Stock in accordance
with the Certificate of Designation, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary in its capacity as Depositary
not less than two business days prior notice of the proposed date of the
mailing of the notice of redemption or exchange of Stock required pursuant to
paragraph 6(b) or 8(e) of the Certificate of Designation to be effected in
connection with a redemption or exchange of Stock and
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of the number of such shares of Stock held by the Depositary to be redeemed or
exchanged as hereinafter provided.
On the date of any redemption or exchange of Stock in
accordance with the Certificate of Designation, provided that the Company shall
then have deposited with the Depositary the amount of cash and/or shares of
Common Stock, as the case may be, required pursuant to the Certificate of
Designation for the Stock deposited with the Depositary to be redeemed or
exchanged, the Depositary shall redeem or exchange (using the cash and/or
shares of Common Stock, if any, as the case may be, deposited with it) the
number of Depositary Shares representing such redeemed or exchanged Stock. The
distribution of the cash and/or shares of Common Stock, if any, used to effect
such redemption or exchange shall be governed by Sections 4.01 and 4.02 hereof.
The Depositary shall, as directed by the Company, mail, first class postage
prepaid, the notice of the redemption or exchange of Stock and the proposed
simultaneous redemption or exchange of the Depositary Shares representing the
Stock to be redeemed or exchanged, not less than 30 and not more than 60 days
prior to the date fixed for redemption, or not less than 20 and not more than
60 days prior to the date fixed for exchange of such Stock and Depositary
Shares. Such notice shall be mailed to each holder of record on the record date
fixed for such redemption or exchange pursuant to Section 4.04 hereof of the
Receipts evidencing the Depositary Shares, at the address of such holder as the
same appears on the records of the Depositary; but neither failure to mail any
such notice to one or more such holders nor any defect in any notice shall
affect the sufficiency of the proceedings for redemption or exchange.
With respect to the notices provided in accordance with the
first paragraph of this Section 2.03, the Company shall provide the Depositary
with such notice, and each such notice shall, as appropriate and to the extent
determinable at the time of such notice, state: the record date for such
redemption or exchange; the redemption or exchange date; that all outstanding
Depositary Shares are to be redeemed or exchanged or, in the case of a
redemption or exchange of fewer than all outstanding Depositary Shares in
connection with a partial redemption or exchange of Stock pursuant to paragraph
6(c) or 8(a) of the Certificate of Designation, the number of such Depositary
Shares held by such holder to be so redeemed or exchanged; in connection with a
redemption of Stock pursuant to paragraph 6(a) of the Certificate of
Designation, the redemption price for the Depositary Shares, in connection with
an exchange pursuant paragraph 8(a) of the Certificate of Designation, the
number of shares of Common Stock deliverable upon exchange of each Depositary
Share to be exchanged and the then effective Exchange Rate (as defined in the
Certificate of Designation) used to calculate the number of shares of Common
Stock; the place or places where Receipts evidencing Depositary Shares to be
redeemed or exchanged are to be surrendered for redemption or exchange and that
dividends in respect of the Stock represented by the Depositary Shares to be
redeemed or exchanged will cease to accrue on such redemption or exchange date,
unless the Company shall default in
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delivering the cash and/or shares of Common Stock, if any, payable by the
Company at the time and place specified in such notice. In case fewer than all
the outstanding Depositary Shares are to be redeemed or exchanged, the
Depositary Shares to be redeemed or exchanged shall be selected by lot or such
other method as the Company in its discretion may determine is fair and
appropriate.
Notice having been mailed by the Depositary as aforesaid,
from and after the redemption or exchange date (unless the Company shall have
failed to redeem or exchange the shares of Stock to be redeemed or exchanged by
it as set forth in the Company's notice provided for in the preceding
paragraphs), the Depositary Shares called for redemption or exchange 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 and/or
shares of Common Stock, if any, upon redemption or exchange) shall, to the
extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notices of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed or exchanged (as nearly as
may be practicable without creating fractional shares) for cash or, if
applicable, shares of Common Stock at a rate equal to one fiftieth the number
of shares of Common Stock delivered in respect of the shares of Stock
represented by such Depositary Shares as is provided for in the Certificate of
Designation. The foregoing shall be subject further to the terms and conditions
of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption or exchange, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption or exchange, together with the cash or, if applicable, shares of
Common Stock for the Depositary Shares called for redemption or exchange.
SECTION 2.04. Transfer of Receipts. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall make transfers on
its books from time to time of Receipts upon any surrender thereof by the
holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
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 or such other office
as the Depositary
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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 by surrendering such Receipt or Receipts at the Corporate
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 represented
by the Depositary Shares evidenced by the Receipt or Receipts so surrendered
for withdrawal, but holders of such shares of Stock will not thereafter be
entitled to deposit such shares of 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
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, deliver to such
holder a new Receipt or Receipts evidencing such excess number of Depositary
Shares. Delivery of the Stock 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 being withdrawn is 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 or endorsement in blank.
The Depositary shall deliver the Stock 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, Surrender and Exchange of Receipts. As a
condition precedent to the
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execution and delivery, transfer, split-up, combination, surrender or exchange
of any Receipt, 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 cash and/or
shares of Common Stock of the Company being issued upon redemption or
exchange); (ii) the production of proof satisfactory to it as to the identity
and genuineness of any signature; and (iii) compliance with such 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 may be suspended, the transfer of Receipts may be refused, and
the transfer, split-up, combination, surrender or exchange of outstanding
Receipts may be suspended (i) during a 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 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, 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 and (iii) payment of any expense
(including fees, charges and expenses of the Depositary) in connection with
such indemnification, 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.
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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 transfer, redemption 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 any Receipt, the Depositary Shares evidenced by
such Receipt, the Stock (or fractional interest therein) represented by such
Depositary Shares or 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. Until such payment is
made, transfer of any Receipt or any withdrawal of the Stock 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 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. Unless the Company determines otherwise, the Depositary shall act
as the 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. In the event the Depositary is required to pay any such
amounts, the Company shall reimburse the Depositary for payment thereof upon
the request of the Depositary and the Depositary shall, upon the Company's
request and as instructed by the Company, pursue its rights against such holder
at the Company's expense.
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SECTION 3.03. 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, fully paid and nonassessable 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.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever any cash dividend
or other cash distribution shall be paid on the Stock, the Company, on behalf
of the Depositary (or, if the Company determines otherwise, the Depositary),
shall, subject to Sections 3.01 and 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 to
withhold and does withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes or as otherwise required
pursuant to law, regulation or court process, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Company, on behalf of the Depositary (or, if the Company
determines otherwise, 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. In the event that the calculation of any such cash dividend or other
cash distribution to be paid to any record holder on the aggregate number of
Depositary Shares held by such holder results in an amount which is a fraction
of a cent, the amount the Depositary shall distribute to such record holder
shall be rounded to the next highest whole cent; and upon request of the
Depositary, the Company shall pay the additional amount to the Depositary for
distribution.
SECTION 4.02. Distributions Other Than Cash. Whenever any
distribution other than cash shall be made on the Stock, the Company, on behalf
of the Depositary (or, if the Company determines otherwise, the Depositary),
shall, subject to Sections 3.01 and 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 Company may deem
equitable and practicable for accomplishing such distribution. If, in the
opinion of the Company, such distribution cannot be made proportionately among
such record
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holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes or as otherwise
required pursuant to law, regulation or court process), the Company deems such
distribution not to be feasible, the Company on behalf of the Depositary (or,
if the Company determines otherwise, the Depositary) may 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 Sections 3.01 and 3.02, be distributed or made available for
distribution, as the case may be, by the Company on behalf of the Depositary
(or, if the Company determines otherwise, 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
or the Company to the record holders of Receipts if the Company so directs 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 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, 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 Sections 3.01 and 3.02, be distributed by the Depositary or
the Company, as the case may be, 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
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or privilege to subscribe for or to purchase any securities unless and until
the Depositary has been notified by the Company that such registration
statement has become effective or that 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 will use its 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 any cash dividend or other cash distribution
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 Stock, or whenever the Depositary shall receive notice of (i) any meeting
at which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice or any solicitation of consents in respect of the Stock,
(ii) any call for redemption of any shares of Stock or (iii) any event of which
holders of Stock are entitled to notice in accordance with the Certificate of
Designation, 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 who
shall be entitled (i) to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, (ii) to
receive notice of, and to give instructions for the exercise of voting rights
at, or the delivery of consents with respect to, any such meeting or consent
solicitation, as the case may be, or (iii) to receive notice of any such
redemption or other event.
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 (unless another arrangement for
allowing holders of Depositary Shares to exercise the voting rights associated
with the Depositary Shares is agreed by the Company and the Depositary), 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 Designation, to instruct the Depositary as
to the exercise of the voting rights with respect to the amount of 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 with respect to
the amount of Stock represented
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by the Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. 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 Reclassifications,
Recapitalizations, 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, upon the instructions of the Company, treat any shares of
stock or other securities (including depositary shares) 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 now 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. If 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 Company delivers to the Depositary shares of stock or other
securities (including depositary shares) or property (including cash) a portion
of which shall be distributed to record holders of Receipts in accordance with
Sections 4.01, 4.02 and 4.03 and a portion of which 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 Section 4.06, the Company shall clearly
indicate such division in the instructions to the Depositary provided pursuant
to this Section 4.06.
ARTICLE V
THE DEPOSITARY 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 at the
Corporate Office facilities for the execution and delivery, transfer, surrender
and exchange, split-up and combination of Receipts and the deposit and
withdrawal of Stock and at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and the deposit and withdrawal of Stock,
all in accordance with the provisions of this Deposit Agreement.
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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 and to the
extent provided by applicable law. 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.
The Depositary shall make available for inspection by holders
of Receipts at the Corporate Office and at such other places as it 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 Stock and made generally available to the holders
of Stock.
Promptly upon request from time to time by the Company and at
the Company's sole expense, 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.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, Inc., the Depositary shall, if directed by the Company, appoint
a Registrar for registry of such Receipts or Depositary Shares in accordance
with the requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery, transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Stock
as may be required by law or applicable stock exchange regulations.
SECTION 5.02. Liability of the Depositary, the Depositary's
Agents or the Company. Neither the Depositary nor any Depositary's Agent 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 Depositary's Agent, by reason of any
provision, present or future, of the Certificate of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary or
the 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 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 or
the Company incur any liability to any holder of a Receipt by
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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 except, in case
of any such exercise or failure to exercise discretion not caused as aforesaid,
if caused by the negligence, bad faith or willful misconduct of the party
charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any Depositary Agent nor the
Company nor the Registrar assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than that each of them agrees to use good faith in the performance of
such duties as are specifically set forth in this Deposit Agreement and other
than for its negligence, bad faith or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor the
Company nor the Registrar 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 or Common Stock or other securities or property
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
Company nor the Registrar 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.
Notwithstanding the first paragraph of this Section 5.03, the
Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited shares of 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 or in accordance with this Deposit Agreement. The Depositary
undertakes, and any Registrar shall be required to undertake, to perform such
duties and only such duties as are specifically set forth in this Deposit
Agreement against the Depositary or any Registrar. The Depositary will
indemnify the Company against any liability that may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence, bad faith or willful misconduct. The Depositary, its parent,
affiliates or subsidiaries and any Depositary's Agent 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
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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 or the Depositary's Agent hereunder. 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 neither the Depositary nor any
Depositary's Agent shall 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 and any Depositary's Agent
are acting only in a ministerial capacity as Depositary for the Stock.
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.
Each of the Company and the Depositary agrees to be bound by,
and act in accordance with, the Operating Guidelines current from time to time.
The Depositary shall not lend the Depositary Shares.
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 Prospectus
pursuant to which the Depositary Shares are offered, the Stock, the Depositary
Shares or 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 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 [ ], 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
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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 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 Company may, by notice in writing to the Depositary,
terminate the engagement of the Depositary with respect to any or all of the
duties or obligations of the Depositary set out in this Deposit Agreement
(including such duties as are customarily associated with the role of a
transfer agent or paying agent), such termination to take effect upon the
appointment of a successor to fulfill those duties or obligations and its
acceptance of such appointment as hereinafter provided. In the event that the
Company terminates the engagement of the Depositary with respect to some, but
not all, of the duties or obligations of the Depositary, the Depositary shall
thereafter be deemed only to have such rights and obligations under this
Deposit Agreement as are necessary for it to fulfill its remaining duties or
obligations. The Depositary agrees to cooperate with the Company or any person
appointed by the Company or that person with respect to the performance of any
of the duties previously performed by the Depositary.
In case at any time the Depositary acting hereunder shall
resign or the Company shall terminate the engagement of the Depositary with
respect to any or all of the duties or obligations of the Depositary set out in
this Deposit Agreement, the Company shall, within 45 days after the delivery of
the notice of resignation or termination, as the case may be, appoint a
successor with respect to such duties and obligations so terminated. If such
successor is to take title to the Stock (a "Depositary Successor"), the
Depositary Successor 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 [$ ]. If a
successor shall not have been appointed in 45 days, the resigning Depositary
may petition a court of competent jurisdiction to appoint a successor.
Every Depositary Successor shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and
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thereupon such Depositary Successor, without any further act or deed, shall
become fully vested with all the duties and obligations of its predecessor so
terminated and all rights and powers with respect thereto and for all purposes
shall be the Depositary under this Deposit Agreement with respect to the duties
and obligations of the predecessor so terminated, 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 Depositary
Successor all such rights and powers of such predecessor hereunder, shall, if
applicable, duly assign, transfer and deliver all rights, title and interest in
the Stock and any moneys or property held hereunder to such Depositary
Successor and shall, if applicable, deliver to such Depositary Successor a list
of the record holders of all outstanding Receipts. Any Depositary Successor
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 Designation 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. The Depositary will make available for
inspection by holders of Receipts at the Corporate office and at such other
places as it may from time to time deem advisable during normal business hours
any such notices and reports received from the Company.
SECTION 5.06. Deposit of Stock by the Company. 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
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attorneys' fees) 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 the Depositary incurs fees, charges or expenses for which it is
not otherwise liable hereunder at the election of a holder of a Receipt or
other person, 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,
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. Any amendment that shall impose any fees,
taxes or charges (other than fees and charges provided for herein or in the
Receipts), or that shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding Receipts
until the expiration of 15 days after notice of such amendment shall have been
given to the record holders of outstanding Receipts. 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. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.03, 2.06, 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. This Deposit Agreement may be
terminated by the Company or the Depositary only after (a) (i) all outstanding
Depositary Shares shall have been redeemed or exchanged pursuant to Section
2.03 or (ii) there shall have
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been made a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or 4.02, as applicable, and (b) reasonable notice has been given
to any remaining holders of Receipts.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Receipts, the Company or the Depositary, as the
case may be, shall suspend the distribution of dividends to the holders
thereof, and the Depositary shall not give any further notices (other than
notice of such termination) or perform any further acts under this Deposit
Agreement, except that the Depositary shall, if applicable, continue to collect
dividends and other distributions pertaining to Stock, 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 upon
surrender thereof by the holders thereof. At any time after the expiration of
two years from the date of termination, the Depositary may sell Stock then held
hereunder at public or private sale, at such places and upon such terms as it
deems proper and may thereafter hold the net proceeds of any such sale,
together with any money and other property held by it hereunder, without
liability for interest, for the benefit, pro rata in accordance with their
holdings, of the holders of Receipts that have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement except to account for such net
proceeds and money and other property.
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 any
outstanding underlying Stock on the New York Stock Exchange, Inc. or any other
national securities exchange on which the Common Stock is listed.
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
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shall be open to inspection at all reasonable times during normal business
hours at the Corporate 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
Xxxxxxxxx, Xxxxxxx, Xxxxx 00000, or at any other place to which the Company may
have transferred its principal executive office.
Any notices 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, return receipt requested, 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 timely filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by 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, in its sole discretion, 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
have complied with the notice provisions set forth herein.
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SECTION 7.05. Depositary's Agents. The Depositary may from
time to time appoint Depositary's Agents (with the Company's prior written
consent and on terms and conditions acceptable to the Company) to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
at any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
prior to any such action.
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 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 Delaware 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.
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IN WITNESS WHEREOF, El Paso Energy Corporation, and [ ] have
duly executed this 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.
EL PASO ENERGY CORPORATION
By:
--------------------------------
Name:
Title:
[ ]
By:
--------------------------------
Name:
Title:
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EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING ONE FIFTIETH SHARE OF
___% SENIOR CUMULATIVE EXCHANGEABLE PREFERRED STOCK
(PAR VALUE $.01 PER SHARE)
OF GAZELLE
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
No. Depositary Shares (each Depositary Share represents one-fiftieth share of
Cumulative Preferred Stock, par value $.01 per share
l. The Depositary Shares. [ ] trust company, as Depositary (the
"Depositary"), hereby certifies that is the registered owner of Depositary
Shares (the "Depositary Shares"), each Depositary Share representing one
fiftieth share of Cumulative Preferred Stock, par value $.01 per share (the
"Stock"), of Gazelle, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), deposited with the Depositary, and
the same proportionate interest in any and all other property received by the
Depositary in respect of such share of Stock and held by the Depositary under
the Deposit Agreement (as defined below). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled, proportionately, to
all the rights, preferences and privileges of the Stock represented thereby,
including the dividend, voting, liquidation and other rights contained in the
Certificate of Designation of Cumulative Preferred Stock, as amended from time
to time, establishing the rights, preferences, privileges and limitations of
the Stock (the "Certificate of Designation"), copies of which are on file at
the Depositary's office located at the time of the execution of the Deposit
Agreement at [ ] (such office or the corporate trust office of the Depositary
at which its business in respect of matters governed by the Deposit Agreement
is administered at any later time, being at the relevant time, the "Corporate
Office").
2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which this
Receipt is one, are made available upon the terms and conditions set forth in
the Deposit Agreement, dated as of [ ], (the "Deposit Agreement"), between the
Company and the Depositary. The Deposit Agreement, copies of which are on file
at the Corporate Office and at the office of any Depositary's Agent, sets forth
the rights of holders of Receipts and the rights and duties of the Depositary.
The statements made in this Receipt are
26
summaries of certain provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made. In the event of
any conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern. Unless
otherwise expressly herein provided, all defined terms used herein shall have
the meanings ascribed thereto in the Deposit Agreement.
3. Redemptions and Exchanges of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the Certificate of Designation, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary not less than two business days prior
notice of the proposed date of the mailing of the notice of redemption or
exchange of Stock required pursuant to paragraph 6(b) or 8(e) of the
Certificate of Designation to be effected in connection with a redemption or
exchange of Stock and of the number of such shares of Stock held by the
Depositary to be redeemed or exchanged as provided herein.
On the date of any redemption or exchange of Stock in accordance with the
Certificate of Designation, provided that the Company shall then have deposited
with the Depositary the amount of cash and/or shares of Common Stock, par value
$3.00 per share ("Common Stock"), as the case may be, required pursuant to the
Certificate of Designation for the Stock deposited with the Depositary to be
redeemed or exchanged, the Depositary shall redeem or exchange (using the
shares of Common Stock, if any, deposited with it) the number of Depositary
Shares representing such redeemed or exchanged Stock. The distribution of the
cash and/or shares of Common Stock, if any, used to effect such redemption or
exchange shall be governed by Sections 4.01 and 4.02 of the Deposit Agreement.
The Depositary shall, as directed by the Company, mail, first class postage
prepaid, notice of the redemption or exchange of Stock and the proposed
simultaneous redemption or exchange of Depositary Shares representing the Stock
to be redeemed or exchanged, not less than 30 and not more than 60 days prior
to the date fixed for redemption, and not less than 20 and not more than 60
days prior to the date fixed for exchange, of such Stock and Depositary Shares.
Such notice shall be mailed to each holder of record on the record date fixed
for such redemption or exchange as provided in paragraph 15 below of the
Receipts evidencing Depositary Shares, at the address of such holder as the
same appears on the records of the Depositary; but neither failure to mail any
such notice to one or more holders nor any defect in any notice shall affect
the sufficiency of the proceedings for redemption or exchange. In case fewer
than all the outstanding Depositary Shares are to be redeemed or exchanged, the
Depositary Shares to be redeemed or exchanged shall be selected by lot or such
other methods the Company in its discretion may determine is fair and
appropriate.
Notice having been mailed as aforesaid, from and after the redemption or
exchange date (unless the Company shall have failed to redeem or exchange the
shares of Stock to be
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redeemed or exchanged by it, as set forth in the Company's notice provided for
above), the Depositary Shares called for redemption or exchange 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/or
exchange shares of Common Stock, if any, upon redemption or exchange) shall, to
the extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notices of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed or exchanged (as nearly as
may be practicable without creating fractional shares) in exchange for cash or,
if applicable, shares of Common Stock at a rate equal to one fiftieth of the
number of shares of Common Stock delivered in respect of the shares of Stock
represented by such Depositary Shares as is provided for in the Certificate of
Designation. The foregoing shall be subject further to the terms and conditions
of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by this Receipt are called
for redemption or exchange, the Depositary will deliver to the holder of this
Receipt upon its surrender to the Depositary, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for redemption
or exchange, together with the shares of Common Stock for the Depositary Shares
called for redemption or exchange.
4. Surrender of Receipts and Withdrawal of Stock. Upon surrender of this
Receipt to the Depositary at the Corporate Office, or at such other offices as
the Depositary may designate, and subject to the provisions of the Deposit
Agreement, the holder hereof is entitled to withdraw, and to obtain delivery,
to or upon the order of such holder, of any or all of the Stock (but only in
whole shares of Stock) and all money and other property, if any, at the time
represented by the Depositary Shares evidenced by this Receipt, but holders of
such shares of Stock will not thereafter be entitled to deposit such shares of
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 whole number of shares of Stock to be
withdrawn, the Depositary shall, in addition to such whole number of shares of
Stock and such money and other property, if any, to be withdrawn, deliver, to
or upon the order of such holder, a new Receipt or Receipts evidencing such
excess number of Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to paragraphs 6, 7 and 8 below,
this Receipt is transferable on the books of the Depositary upon surrender of
this Receipt to the Depositary, properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement, and upon such transfer the
Depositary shall sign and deliver a Receipt to or upon the order of the person
entitled thereto, all as provided in and subject to the Deposit Agreement. This
Receipt may be split into other Receipts or combined with other Receipts into
one Receipt evidencing the same aggregate number of
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Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc., of Receipts. As a
condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of this Receipt, 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 cash and/or shares of Stock being
deposited or withdrawn or with respect to the cash and/or shares of Common
Stock of the Company being issued upon redemption or exchange); (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish not inconsistent with the provisions of
the Deposit Agreement. Any person presenting Stock for deposit, or any holder
of this Receipt, may be required 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
this Receipt, the transfer, redemption or exchange of this Receipt, the
withdrawal of the Stock represented by the Depositary Shares evidenced by this
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.
7. Suspension of Delivery, Transfer, etc. The deposit of Stock may be refused,
the delivery of this Receipt against Stock may be suspended, the transfer of
this Receipt may be refused, and the transfer, split-up, combination, surrender
or exchange of this Receipt 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 the Deposit Agreement, or (iii) with the approval of the Company,
for any other reason.
8. 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 this Receipt, the Depositary Shares evidenced by this Receipt, the
Stock (or any fractional interest therein) represented by such Depositary
Shares or any transaction referred to in Section 4.06 of the Deposit Agreement,
such tax (including transfer, issuance or acquisition taxes, if any) or
governmental charge shall be payable by the holder hereof. Until such payment
is made, transfer of this Receipt or any withdrawal of the Stock represented by
the Depositary Shares evidenced by this Receipt may be refused, any
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29
dividend or other distribution may be withheld and any part or all of the Stock
represented by the Depositary Shares evidenced by this Receipt may be sold for
the account of the holder hereof (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 this Receipt remaining
liable for any deficiency.
9. Amendment. The form of the Receipts and any provision of the 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. Any amendment that shall impose any fees, taxes or charges (other
than fees and charges provided for herein or in the Deposit Agreement), or that
shall otherwise prejudice any substantial existing right of holders of
Receipts, shall not become effective as to outstanding Receipts until the
expiration of 15 days after notice of such amendment shall have been given to
the record holders of outstanding Receipts. The holder of this Receipt at the
time any such amendment becomes effective shall be deemed, by continuing to
hold this Receipt, to consent and agree to such amendment and to be bound by
the Deposit Agreement an amended thereby. In no event shall any amendment
impair the right, subject to the provisions of paragraphs 3, 4, 7 and 8 hereof
and of Sections 2.03, 2.06, 2.07 and Article III of the Deposit Agreement, of
the owner of the Depositary Shares evidenced by this Receipt to surrender this
Receipt 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.
10. Fees, Charges and Expenses. The Company will pay all fees, charges and
expenses of the Depositary, except for taxes (including transfer taxes, if any)
and other governmental charges and such charges as are expressly provided in
the Deposit Agreement to be at the expense of persons depositing Stock, holders
of Receipts or other persons.
11. Title to Receipts. It is a condition of this Receipt, and every successive
holder hereof by accepting or holding the same consents and agrees, that title
to this Receipt (and to the Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a properly executed instrument of transfer or
endorsement, is transferable by delivery with the same effect as in the case of
a negotiable instrument; provided, however, that until this Receipt shall be
transferred on the books of the Depositary as provided in Section 2.04 of the
Deposit Agreement, the Depositary and the Company may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
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12. Cash Dividends and Distributions. Whenever any cash dividend or other cash
distribution shall be paid on the Stock, the Company, on behalf of the
Depositary, (or, if the Company determines otherwise, the Depositary) will,
subject to the provisions of the Deposit Agreement, make such distribution to
record holders of Receipts 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 the event the Company or the Depositary
shall be required to withhold and does withhold from any cash dividend or other
cash distribution in respect of the 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 Company, on behalf of the Depositary, (or, if the
Company determines otherwise, the Depositary) will 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. In the event that the calculation of any such cash dividend or other
cash distribution to be paid to any record holder on the aggregate number of
Depositary Shares held by such holder results in an amount which is a fraction
of a cent, the amount the Depositary shall distribute to such record holder
shall be rounded to the next highest whole cent; and upon request of the
Depositary, the Company shall pay the additional amount to the Depositary for
distribution.
13. Distributions Other Than Cash. Whenever any distribution other than cash
shall be made on the Stock, the Company, on behalf of the Depositary (or, if
the Company determines otherwise, the Depositary), will, subject to the
provisions of the Deposit Agreement make such distribution to record holders of
Receipts as nearly as practicable in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, in any manner
that the Company may deem equitable and practicable for accomplishing such
distribution. If, in the opinion of the 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 or as otherwise required pursuant to law, regulation
or court process), the Company deems such distribution not to be feasible, the
Company on behalf of the Depositary (or, if the Company determines otherwise,
the Depositary) may 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 will, subject to the provisions of the Deposit
Agreement, be distributed or made available for distribution, as the case may
be, by the Company on behalf of the Depositary (or, if the Company determines
otherwise, the Depositary) to record holders of Receipts as provided by the
Deposit Agreement in the case of a distribution received in cash.
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14. Subscription Rights, Preferences or Privileges. If the Company shall at any
time offer or cause to be offered to the persons in whose name 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, subject to the provisions of the Deposit Agreement, be made
available by the Depositary or the Company to the record holders of Receipts if
the Company so directs in such manner as the Company shall instruct.
15. Notice of Dividends, Fixing of Record Date. Whenever any cash dividend or
other cash distribution 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 Stock, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice or any solicitation of consents
in respect of the Stock, (ii) any call for redemption or exchange of any shares
of Stock or (iii) any event of which holders of Stock are entitled to notice in
accordance with the Certificate of Designation, the Depositary will 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 who shall be entitled (i) to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, (ii) to receive notice of, and to give instructions for the exercise
of voting rights at, or the delivery of consents with respect to, any such
meeting or consent solicitation, as the case may be, or (iii) to receive notice
of any such redemption or other event.
16. Voting Rights. Upon receipt of notice of any meeting at which the holders
of Stock are entitled to vote, the Depositary will, as soon as practicable
thereafter (unless another arrangement for allowing holders of Depositary
Shares to exercise the voting rights associated with the Depositary Shares is
agreed by the Company and the Depositary), mail to the record holders of
Receipts a notice, which will 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 determined as provided in
paragraph 15 will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designation, to instruct the
Depositary as to the exercise of the voting rights with respect to the amount
of 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
will endeavor insofar as practicable to vote or cause to be voted with respect
to the amount of Stock represented by the Depositary Shares evidenced by such
Receipt in accordance with the instructions set forth in such request. 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.
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17. Reports, Inspection of Transfer Books. The Depositary will make available
for inspection by holders of Receipts at the Corporate Office and at such other
places as it 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 Stock and made generally available to the
holders of Stock by the Company. The Depositary will keep books at the
Corporate Office for the registration and transfer of Receipts, which books at
all reasonable times during normal business hours will be open for inspection
by the record holders of Receipts as and to the extent provided by applicable
law.
18. Liability of the Depositary, the Depositary's Agent and the Company.
Neither the Depositary nor any Depositary's Agent nor the Company will 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 any governmental
authority or, in the case of the Depositary or the Depositary's Agent, by
reason of any provision, present or future, of the Certificate of Incorporation
or the Certificate of Designation or, in the case of the Company, the
Depositary or the 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 or the Company shall be prevented or forbidden from
doing or performing any act or thing that the terms of the Deposit Agreement
provide shall be done or performed; nor will the Depositary, any Depositary's
Agent 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 the 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 the Deposit Agreement.
19. Obligations of the Depositary, the Depositary's Agents and the Company.
Neither the Depositary nor any Depositary's Agent nor the Company assumes any
obligation or will be subject to any liability hereunder or under the Deposit
Agreement to holders of Receipts other than that each of them agrees to use
good faith in the performance of such duties as are specifically set forth in
the Deposit Agreement and other than for its negligence, bad faith or willful
misconduct.
Neither the Depositary nor any Depositary's Agent nor the Company will be under
any obligation to appear in, prosecute or defend any action, suit or other
proceeding with respect to Stock, Depositary Shares or Receipts or Common Stock
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 Company will 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
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any other person believed by it in good faith to be competent to give such
advice or information.
20. Termination of Deposit Agreement. The Deposit Agreement may be terminated
by the Company or the Depositary only after (a) (i) all outstanding Depositary
Shares have been redeemed or exchanged pursuant to Section 2.03 of the Deposit
Agreement or there shall have been made a final distribution in respect of the
Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02 of the Deposit Agreement, as
applicable and (b) reasonable notice has been given to any remaining holders of
Receipts. Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations thereunder except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under Sections 5.07 and
5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date of termination, the
Depositary thereafter will discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as specifically
provided therein.
21. Governing Law. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed
by, and construed in accordance with, the law of the State of Delaware without
giving effect to principles of conflict of laws.
This Receipt shall not be entitled to any benefits under the Deposit Agreement
or be valid or obligatory for any purpose unless this Receipt shall have been
executed manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile by the Depositary by the
signature of a duly authorized signatory and, if executed by facsimile
signature of the Depositary, shall have been countersigned manually by Such
Registrar by the signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE
DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING
DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET FORTH IN THE
DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO
THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED
WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES OR
THE RECEIPTS (EXCEPT FOR ITS COUNTERSIGNATURE THEREON), AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT
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AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE
OR INTEREST OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE
DEPOSITARY SHARES.
The Company will furnish to any holder of a Receipt without charge, upon
request addressed to its executive office or the office of its transfer agent,
a full statement of the designation, relative rights, preferences and
limitations of the shares of each authorized class, and of each series of
preferred stock authorized to be issued, so far as the same may have been
fixed, and a statement of the authority of the Board of Directors of the
Company to designate and fix the relative rights, preferences and limitations
of each series.
Dated:
[ ]
By
----------------------------
Authorized Signatory
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35
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto this Receipt and all rights and interests represented by the
Depositary Shares evidenced thereby, and hereby irrevocably constitutes and
appoints his attorney, to transfer the same on the books of the within-named
Depositary, with full power of substitution in the premises.
Dated:
Signature:
--------------------
NOTE: The signature to this
assignment must
correspond with the name
as written upon the face
of the Receipt in every
particular, without
alteration or
enlargement, or any
change whatever.
Signature Guarantee:
--------------------------
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