EXHIBIT 4.12
GLOBAL SIGNAL INC.,
__________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
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FORM OF
DEPOSIT AGREEMENT
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Dated as of [DATE]
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transfer of Receipts....................................2
Section 2.2 Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof...............................................4
Section 2.3 Redemption of Stock..............................................4
Section 2.4 Registration of Transfer of Receipts.............................6
Section 2.5 Split-Ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock.................................6
Section 2.6 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts...............................7
Section 2.7 Lost Receipts, Etc...............................................8
Section 2.8 Cancellation and Destruction of Surrendered Receipts.............8
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information................8
Section 3.2 Payment of Taxes or Other Governmental Charges...................9
Section 3.3 Representation and Warranty as to Stock..........................9
ARTICLE IV THE DEPOSITED SECURITIES; NOTICES
Section 4.1 Cash Distributions...............................................9
Section 4.2 Distribution Other than Cash, Rights, Preferences or
Privileges......................................................10
Section 4.3 Subscription Rights, Preferences or Privileges..................10
Section 4.4 Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts.............................................11
Section 4.5 Voting Rights...................................................12
Section 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalization, Etc........................12
Section 4.7 Inspection of Reports...........................................13
Section 4.8 Lists of Receipt Holders........................................13
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.1 Maintenance of Offices, Agencies and Transfer Books By
the Depositary; Registrar.......................................13
Section 5.2 Prevention of or Delay in Performance By the Depositary,
The Depositary's Agents, the Registrar or the Company...........14
Section 5.3 Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company...................................15
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary.........................................15
Section 5.5 Corporate Notices and Reports...................................16
Section 5.6 Indemnification By the Company..................................16
Section 5.7 Charges and Expenses............................................17
Section 5.8 Tax Compliance..................................................17
ARTICLE VI AMENDMENT AND TERMINATION
Section 6.1 Amendment.......................................................18
Section 6.2 Termination.....................................................18
ARTICLE VII MISCELLANEOUS
Section 7.1 Counterparts....................................................18
Section 7.2 Exclusive Benefit of Parties....................................18
Section 7.3 Invalidity of Provisions........................................19
Section 7.4 Notices.........................................................19
Section 7.5 Depositary's Agents.............................................19
Section 7.6 Holders of Receipts are Parties.................................19
Section 7.7 Governing Law...................................................20
Section 7.8 Inspection of Deposit Agreement.................................20
Section 7.9 Headings........................................................20
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DEPOSIT AGREEMENT dated as of [DATE], among GLOBAL SIGNAL INC., a
Delaware corporation (the "Company"), __________, a __________ corporation (the
"Depositary"), and the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of ________________ preference
shares, $__ par value each, of the Company with the Depositary for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of Receipts
evidencing Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and
such other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate of Designation" shall mean the Certificate of Designation
establishing and setting forth the rights, preferences, privileges and
limitations of the Stock.
"Certificate of Incorporation" shall mean the amended and restated
certificate of incorporation of the Company, together with any amendments
thereto, filed with the Secretary of State of the State of Delaware.
"Company" shall mean GLOBAL SIGNAL INC., a Delaware corporation, and
its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended,
modified or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean __________, and any successor as Depositary
hereunder.
"Depositary Shares" shall mean an interest in [fraction] of a share of
Stock deposited with the Depositary hereunder and the same proportionate
interest in any and all other property received by the Depositary in respect of
such share of Stock and held under this Deposit Agreement, all as evidenced by
the Receipts issued hereunder. Subject to the terms of this Deposit Agreement,
each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented by such Depositary Share, including the dividend, voting and
liquidation rights contained in the Certificate of Designation, and to the
benefits of all obligations of the Company under the Certificate of Designation.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.5.
"Depositary's Office" shall mean the office of the Depositary, in the
Borough of Manhattan, New York, New York, at which at any particular time its
depositary receipt business shall be administered, which at the date of this
Deposit Agreement is located at ____________.
"Receipt" shall mean one of the depositary receipts substantially in
the form set forth as Exhibit A annexed hereto, issued hereunder, whether in
definitive or temporary form evidencing the number of Depositary Shares held of
record by the holder of such Depositary Shares.
"Record Holder," as applied to a Receipt, shall mean the individual
entity or person in whose name a Receipt is registered on the books of the
Depositary or any register of any Registrar maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed by the Depositary to register ownership and transfers of Receipts as
herein provided and which may include the Depositary.
"Securities Act" shall mean the Securities Act of 1933.
"Stock" shall mean shares of the Company's _________ Preference
Shares, $___ par value per share.
"Transfer Agent" shall mean the Registrar.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transfer of Receipts.
Definitive Receipts shall be 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 delivered in
compliance with Section 2.2, shall execute and deliver temporary receipts which
shall be printed, lithographed, typewritten 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
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such Receipts. If temporary Receipts are issued, the Company and the Depositary
will cause definitive Receipts to be prepared without unreasonable delay. After
the preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary Receipts at
the Depositary's Office, 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 registered in the name (and only the name) of the holder of the
temporary Receipt. Such exchange shall be made at the Company's expense and
without any charge therefor to the holder. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits under this
Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by 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 manually by a duly authorized
signatory of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of a
duly authorized signatory of the Depositary and countersigned manually by a duly
authorized signatory of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided. Receipts bearing
the manual or facsimile signatures of individuals who were at any time proper
officers of the Depositary or the Registrar, as the case may be, shall
constitute adequate signatures hereunder, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the delivery of such
Receipt or did not hold such offices on the date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation or with the rules and regulations or
any securities exchange upon which the Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for
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the purpose of determining the person entitled to distributions of dividends or
other distributions with respect to the Stock or to any notice provided for in
this Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
Section 2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof.
Subject to the terms and conditions of this Deposit Agreement, the
Company or any other person authorized by the Company, as notified in writing to
the Depositary, may from time to time deposit shares of the Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or certificates
for the Stock to be deposited. Such certificate or certificates representing the
Stock shall be properly endorsed or accompanied, if required by the Depositary,
by a duly executed instrument of transfer or endorsement, in form satisfactory
to the Depositary, together with such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company, directing the Depositary to
execute and deliver to the person or persons named in such order, a Receipt or
Receipts evidencing in the aggregate the number of Depositary Shares
representing such deposited Stock.
All Stock deposited by the Company with the Depositary shall be held
by the Depositary at the Depositary's Office or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited with the Depositary by the Company in accordance with the
provisions of this Section, together with the other documents required as above
specified, and upon recordation of the Stock on the books of the Company in the
name of the Depositary or its nominee, the Depositary shall execute and deliver
to the person or persons named in the written order delivered to the Depositary
a Receipt or Receipts, evidencing in the aggregate the number of Depositary
Shares representing the Stock so deposited. Such Receipt or Receipts shall be
registered by the Depositary or the Registrar in such name or names as may be
requested by the person or persons as specified in the written order. The
Depositary shall execute and deliver such Receipts at the Depositary's Office or
such other offices, if any, as such person may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
The Depositary may not execute and deliver Receipts pursuant to this Section
prior to receipt of Stock.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
[___] shares of Stock.
Section 2.3 Redemption of Stock.
Whenever the Company shall elect or be required to redeem shares of
Stock in accordance with the provisions of the Certificate of Designation, it
shall (unless
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otherwise agreed to in writing with the Depositary) give or cause to be given to
the Depositary not less than 10 days' prior notice of the proposed date of the
mailing of a notice of redemption of Stock to the record holders of receipts and
of the number of such shares held by the Depositary to be so redeemed and the
applicable redemption price, which notice shall be accompanied by a certificate
from the Company stating that such redemption of Stock is in accordance with the
provisions of the Certificate of Designation. On the date of such redemption,
provided that the Company shall then have paid or caused to be paid in full to
the Depositary the redemption price of the Stock to be redeemed, plus an amount
equal to any accrued and unpaid dividends thereon to the date fixed for
redemption, in accordance with the provisions of the Certificate of Designation,
the Depositary shall redeem the number of Depositary Shares representing such
Stock. The Depositary shall mail notice of the Company's redemption of Stock and
the proposed simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed by first-class mail, postage prepaid, not
less than 30 and not more than 90 days prior to the date fixed for redemption of
such Stock and Depositary Shares (the "Redemption Date"), to the record holders
of the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary on the
[_] day prior to the date of such notice; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more such holders nor any
defect in any notice of redemption of Depositary Shares to one or more such
holders shall affect the sufficiency of the proceedings for redemption as to
other holders. Each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares to be redeemed, the number of such Depositary Shares held by such holder
to be so redeemed; (iii) the redemption price; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (v) the dividends in respect of the Stock represented by
the Depositary Shares to be redeemed will cease to accumulate on such Redemption
Date. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata (as nearly as may be) as may be determined by the Depositary or any
other method which may be determined by the Depositary in its sole discretion to
be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide the
funds necessary to redeem the Stock evidenced by the Depositary Shares called
for redemption), (i) dividends in respect of the shares of Stock so called for
redemption shall cease to accrue from and after such date, (ii) the Depositary
Shares being redeemed from such proceeds shall be deemed no longer to be
outstanding, (iii) all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate and, (iv) upon
surrender in accordance with such redemption notice of the Receipts evidencing
any such Depositary Shares called for redemption (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to [____________] [_]% of the redemption price per share paid in respect of the
shares of Stock plus all money and other property, if any, represented by such
Depositary Shares, including all amounts
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paid by the Company in respect of dividends which on the Redemption Date have
accumulated on the shares of Stock to be so redeemed and have not theretofore
been paid.
If fewer than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption. The Depositary shall remit to the Company any funds
deposited by or for the account of the Company for the purpose of redeeming any
Depositary Shares that the holders thereof have failed to redeem after two years
from the date of such deposit, without further action necessary on the part of
the Company.
Section 2.4 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the
Registrar, on behalf of the Depositary, shall register on its books from time to
time transfers of Receipts upon notice to the Registrar by the Depositary of any
surrender of a Receipt for transfer by the holder in person or by duly
authorized attorney, which Receipt in each case must be properly endorsed or
accompanied by a properly executed instrument of transfer. Upon surrender of a
properly endorsed Receipt or Receipts, accompanied by a properly executed
instrument of transfer, the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares as those evidenced by
the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to
or upon the order of the transferee named in the endorsement or instrument of
transfer.
Section 2.5 Split-Ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's Office or
at such other offices as it may designate for the purpose of effecting a
split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts to the holder thereof or to such holder's
order in the denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered. The
Depositary shall give prompt notice of such action and the certificate numbers
to the Registrar, if applicable, for the purpose of recording such split-up or
consolidation.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the number of whole shares of Stock underlying
such Depositary Shares and all money and other property, if any, represented
thereby by surrendering such Receipt or Receipts, at the Depositary's Office or
at such other offices as the Depositary may designate for such withdrawals.
Thereafter, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, the number of whole shares of Stock and all money and
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other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt or Receipts delivered by the holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Sections 2.4 and 3.2) upon his order, a new Receipt evidencing such excess
number of Depositary Shares not withdrawn. Delivery of the Stock and money and
other property, if any, being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate.
If the Stock and the money and other property, if any, being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary, and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
Section 2.6 Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination, surrender or exchange of any Receipt, the
Depositary, any of the Depositary's Agents or the Company may require payment to
it of a sum sufficient for the payment (or, in the event that the Depositary or
the Company shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section 5.7,
may require the production of evidence satisfactory to it as to the identity and
genuineness of any signature; and may also require compliance with the rules and
regulations of any governmental body, any stock exchange or applicable
self-regulatory body, including without limitation, the National Association of
Securities Dealers, Inc. (the "NASD") or such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock deposited with the Depositary may be suspended, the registration of
transfer of Receipts may be refused and the registration of transfer, surrender
or exchange of outstanding Receipts may be suspended (i) during any period when
the register of stockholders of the Company is closed with respect to the Stock,
(ii) if any such action is
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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, stock exchange or
the NASD 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 2.7 Lost Receipts, Etc.
If any mutilated Receipt is surrendered to the Depositary, the
Depositary may, in its discretion, execute and deliver in exchange therefor a
new Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt. In case any Receipt shall be destroyed, lost or stolen, the
Depositary shall execute and deliver a Receipt to the holder thereof of like
form and tenor in exchange and substitution for such destroyed, lost or stolen
Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of such holder's ownership
thereof, (ii) the holder's furnishing the Depositary with reasonable
indemnification satisfactory to the Depositary and the Company and (iii) payment
of any expense (including fees, charges and expenses of the Depositary) in
connection with such execution and delivery.
Section 2.8 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 all Receipts so cancelled,
and provide the Company a certificate of designation therefor.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to file such
proof of residence, or other matters or other information, to obtain such
guarantees of signature, to execute such certificates and to make such
representations and warranties consistent with the terms of the Stock as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal of the
Stock represented by the Depositary Shares evidenced by any Receipt and the
delivery of all money or other property, if any, represented by the Depositary
Shares represented by such Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other
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information is filed or such certificates are executed or such representations
and warranties are made.
Section 3.2 Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the
Depositary of certain charges and expenses, as provided in Section 5.7.
Registration of transfer of any Receipt or any withdrawal of Stock and all money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
Section 3.3 Representation and Warranty 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 DEPOSITED SECURITIES; NOTICES
Section 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution with respect to the Stock, the Depositary shall, subject to
Sections 3.1 and 3.2, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.4 the pro rata portion, as nearly as
practicable, of such dividend or distribution applicable to the number of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required to
withhold and shall withhold any monies from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the
distribution in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
holder of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next succeeding
distribution to record holders of Receipts then outstanding.
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Section 4.2 Distribution Other than Cash, Rights, Preferences or
Privileges.
Whenever the Depositary shall receive any property (including
securities) for distribution in a form other than cash, with respect to the
Stock, the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.4 the
pro rata portion, as nearly as practicable of such property (including
securities) received by it applicable to the number of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale of the property thus
received, or any part thereof, in a commercially reasonable manner. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
or made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash. The Depositary shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel
stating that such securities have been registered under the Securities Act or do
not need to be registered.
Section 4.3 Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts, pro rata in proportion to the Stock represented
by the Depositary Shares evidenced by such Receipt, in such manner as the
Depositary may determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion with the approval of the
Company; provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
by the Depositary to the record
10
holders of Receipts entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Depositary shall not make any distribution of
any such rights, preferences or privileges unless the Company shall have
provided an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not need to be
registered.
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 the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to the Securities Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of the Securities
Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that 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 4.4 Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution of property (including securities) other than cash
shall be made, or if rights, preferences or privileges shall at any time be
offered, with respect to Stock, or whenever the Depositary shall receive notice
of (i) any meeting at which holders of Stock are entitled to vote or of which
holders of Stock are entitled to notice, or (ii) any election on the part of the
Company to redeem any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or to receive notice of such meeting or for any other appropriate
reasons.
11
Section 4.5 Voting Rights.
Upon receipt of notice of any meeting at which the holders of Stock
are entitled to vote, the Depositary shall, as soon as practicable thereafter,
mail to the record holders of Receipts a notice which shall contain (i) such
information as is contained in such notice of meeting and (ii) a statement that
the holders may, subject to any applicable restrictions, instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of Stock
represented by their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the applicable record date, the Depositary
shall endeavor insofar as practicable, to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum number
of whole shares of Stock represented by the Depositary Shares evidenced by all
Receipts as to which any particular voting instructions are received. The
Company hereby agrees to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will either vote the Shares or abstain from voting in
accordance with applicable stock exchange rules on which the Shares may be
listed (but, at its discretion, not from appearing at any meeting with respect
to such Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
Section 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalization, Etc.
Upon any change in par or stated value or liquidation preference,
split-up, combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation to which
the Company is a party or sale of all or substantially all of the Company's
assets, the Depositary may in its discretion with the approval of, and shall
upon the instructions of, the Company, and (in either case) in such manner as to
retain as nearly as possible the percentage ownership interest in the Stock of
holders of the Receipts immediately prior to such event, (i) make such
adjustments in (x) the fraction of an interest represented by one Depositary
Share in one share of Stock and (y) the ratio of the redemption price per
Depositary Share to the redemption price of a share of Stock, in each case, as
may be necessary fully to reflect the effects of such change in par or stated
value or liquidation preference, split- up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger,
amalgamation or consolidation or sale and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion or in respect of such Stock. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
12
Anything to the contrary herein notwithstanding, holders of Receipts
shall have the right from and after the effective date of any such change in par
or stated value or liquidation preference, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger, amalgamation or consolidation or sale to the extent that holders of
Stock had the right, prior to or on the applicable effective date, to convert,
exchange or surrender the Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which such Stock might have been exchange or surrendered
immediately prior to the effective date of such transaction.
Section 4.7 Inspection of Reports.
The Depositary shall transmit to the record holders of Receipts, at
the addresses of such record holders as set forth on the books of the
Depositary, and shall make available for inspection by holders of Receipts at
the Depositary's Office, and at such other places as it may from time to time
deem advisable, any reports and communications received from the Company which
are received by the Depositary as the holder of Stock.
Section 4.8 Lists of Receipt Holders.
Promptly upon request from time to time by the Company, the Depositary
shall furnish to it a list, as of a recent date, of the names and addresses of
all persons in whose names Receipts are registered on the books of the
Depositary and the amount of Stock represented thereby.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.1 Maintenance of Offices, Agencies and Transfer Books By the
Depositary; Registrar.
Upon execution of this Deposit Agreement, the Depositary shall
maintain, at the Depositary's Office, facilities for the execution and delivery,
registration and registration of transfer, surrender and exchange of Receipts,
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, registration of transfer, surrender and exchange of Receipts and the
deposit and withdrawal of Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares in
accordance with any requirements of any applicable stock exchange on which the
Receipts or the Depositary Shares are listed. 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, the Depositary Shares or the Stock
are listed on one or more other stock exchanges, the
13
Depositary will, at the request of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulation.
The Registrar shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts or at such other place as
shall be approved by the Company and of which the holders of Receipts shall have
reasonable notice, which books at all reasonable times shall be open for
inspection by the record holders of Receipts during normal business hours as and
to the extent provided by applicable law; provided, that any such holder
requesting to exercise such right shall certify to the Registrar that such
inspection shall be for a proper purpose reasonably related to such person's
rights as an owner of Depositary Shares evidenced by the Receipts.
The Depositary may cause the Registrar to close such books, at any
time or from time to time, when the register of stockholders of the Company is
closed with respect to the Stock or when such action is deemed necessary or
advisable by the Depositary or any Depositary's Agent because of any requirement
of law or of any government, governmental body or commission, stock exchange or
any applicable self-regulatory body, including without limitation, the NASD.
Section 5.2 Prevention of or Delay in Performance By the Depositary,
The Depositary's Agents, the Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall incur any liability to any holder of any Receipt if by
reason of any provision of any present or future law, or regulation thereunder,
of the United States of America or of any other governmental authority or, in
the case of the Depositary, the Depositary's Agent or the Registrar, by reason
of any provision, present or future, of the Company's Certificate of
Incorporation or Certificate of Designation or by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, the Depositary's Agent, the Registrar or the Company shall be
prevented, delayed or forbidden from doing or performing any act or thing which
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, any Registrar or the Company incur
any liability or be subject to any obligation (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the negligence, fraud, dishonesty, or willful misconduct of the party charged
with such exercise or failure to exercise.
14
Section 5.3 Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, any holder of
a Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar and
the Company may each rely and shall each be protected in acting upon 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 specified in this
Deposit Agreement.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement using its best efforts and in good faith. The
parties hereto acknowledge that no implied covenants or obligations shall be
read into this Depositary 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 the Depositary's Agents due to
its or their negligence, bad faith, willful misconduct, fraud or dishonesty. The
Depositary, the Depositary's Agents, and any Registrar may own and deal in any
class of securities of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
Section 5.4 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 so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice or
resignation
15
or removal, as the case may be, appoint a successor Depositary, which shall be a
bank or trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $50,000,000. If no
successor Depositary shall have been so appointed and have accepted appointment
within 60 days after delivery of such notice, the resigning or removed
Depositary may petition any court of competent jurisdiction for the appointment
of a successor Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and agreeing to become a party to this Deposit Agreement
and thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor, and
shall deliver to such successor a list of the record holders of all outstanding
Receipts. Any successor Depositary shall promptly mail notice of its appointment
to the record holders of Receipts.
Any corporation or other entity into or with which the Depositary may
be merged, consolidated or converted or to which the Depositary may sell all or
substantially all of its assets shall be the successor of such Depositary
without the execution or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor Depositary may
authenticate the Receipts in the name of the predecessor Depositary or in the
name of the successor Depositary.
Section 5.5 Corporate Notices and Reports.
The Company agrees that it will deliver to the Depositary and the
Depositary will, promptly after receipt thereof, transmit to the record holders
of Receipts, in each case at the addresses furnished to it pursuant to Section
4.8, all notices and reports (including without limitation financial statements)
required by law, by the rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are listed or by the Company's
Certificate of Incorporation and 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 such
documents as the Depositary may reasonably request.
Section 5.6 Indemnification By the Company.
The Company shall indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any loss, liability
or expense (including the costs and expenses of defending itself and reasonable
counsel fees) which may arise out of (a) acts performed or omitted in connection
with this Deposit Agreement and the Receipts (i) by the Depositary, any
Registrar or any of their respective agents (including any Depositary's Agent),
except for any liability arising out of negligence, willful misconduct, fraud,
dishonesty or bad faith on the respective parts of any such
16
person or persons, or (ii) by the Company or any of its agents, or (b) the
offer, sale or registration of the Receipts, the Depositary Shares or the Stock
pursuant to the provisions hereof.
Section 5.7 Charges and Expenses.
The Company shall pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements
hereunder. The Company shall pay all charges of the Depositary in connection
with the initial deposit of the Stock and the initial issuance of the Depositary
Shares, redemption of the Stock at the option of the Company and all withdrawals
of shares of the Stock by owners of Depositary Shares. All other transfer and
other taxes and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of Receipts, the Depositary
incurs charges or expenses for which it is not otherwise liable hereunder, such
holder will be liable for such charges and expenses. All other charges and
expenses of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses of counsel)
incident to the performance of their respective obligations hereunder will be
paid upon consultation and agreement between the Depositary and the Company as
to the amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the Depositary may agree.
Section 5.8 Tax Compliance.
(a) The Depositary, on its own behalf and on behalf of the Company,
will comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by applicable
tax laws, regulations or administrative practice with respect to (i) any
payments made with respect to the Depositary Shares or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the Receipts
or the Depositary Shares. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Depositary shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Deposit Agreement rely on any such direction in accordance with the
provisions of Section 5.3 hereof.
(c) The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request of the Company or to its authorized representatives.
17
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment which would materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of Receipts evidencing at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective, or any
transferee of such holder, shall be deemed, by continuing to hold such Receipt,
or by reason of the acquisition thereof, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby.
Section 6.2 Termination.
This Deposit Agreement may be terminated by the Company or the
Depositary only after (i) all outstanding Depositary Shares shall have been
redeemed pursuant to Section 2.3; (ii) each share of preferred stock has been
converted into other shares of preferred stock or common stock or has been
exchanged for debt securities; or (iii) 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 Receipts evidencing the Depositary Shares pursuant
to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Deposit Agreement except for
their respective obligations under Sections 5.3, 5.6 and 5.7.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts.
This Deposit Agreement may be executed in any number of counterparts,
and by each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument.
Section 7.2 Exclusive Benefit of Parties.
This Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
18
Section 7.3 Invalidity of Provisions.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
Section 7.4 Notices.
Any and all notices to be given to the Company hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram, confirmed by letter, addressed
to the Company at Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, to
the attention of the General Counsel, or at any other address of which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, confirmed by letter,
addressed to the Depositary at the Depositary's Office, at [_____], or at any
other address of which the Depositary shall have notified the Company and the
record holders of the Receipts in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram,
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by telegram, shall be deemed to
be effected at the time when a duly addressed letter containing the same (or a
confirmation thereof in the case of a telegram) is deposited, postage prepaid,
in a post office letter box. The Depositary or the Company may, however, act
upon any telegram message received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram, telecopy or telex message shall not
subsequently be confirmed by letter or as aforesaid.
Section 7.5 Depositary's Agents.
The Depositary may from time to time appoint Depositary's Agents to
act in any respect for the Depositary for the purposes of this Deposit Agreement
and may at any time appoint additional Depositary's Agents and vary or terminate
the appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action.
Section 7.6 Holders of Receipts are Parties.
By acceptance of delivery of the Receipts, the holder of any such
Receipt from time to time shall be deemed to have agreed to become a party to
this Deposit
19
Agreement and to be bound by all of the terms and conditions hereof and of the
Receipts to the same extent as though such person executed this Deposit
Agreement.
Section 7.7 Governing Law.
THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND
THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO
APPLICABLE CONFLICTS OF LAWS PROVISIONS).
Section 7.8 Inspection of Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the Depositary
and the Depositary's Agents and shall be open to inspection during business
hours at the Depositary's Office and the respective offices of the Depositary's
Agent, if any, by any holder of a Receipt.
Section 7.9 Headings.
The headings of articles and sections in this Deposit Agreement and in
the form of the Receipt set forth in Exhibit A hereto have been inserted for
convenience only and are not to be regarded as a part of this Deposit Agreement
or the Receipts or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
20
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
GLOBAL SIGNAL INC.
Attested by
By:
----------------------- -------------------------
Name:
Title:
[______], as Depositary
Attested by:
By:
------------------------ -------------------------
Name:
Title:
Exhibit A
[FORM OF FACE OF RECEIPT]
TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
NUMBER
DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN [___] DEPOSITARY SHARES
TDR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
[___] PREFERRED SHARES OF GLOBAL SIGNAL INC.
CUSIP [___]
ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE (SEE REVERSE FOR CERTAIN
DEFINITIONS)
[______________], as Depositary (the "Depositary"), hereby certifies that
[________] is the registered owner of [_______________] DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [_______________] of
one share of [insert title of stock], (the "Stock"), of GLOBAL SIGNAL INC., a
Delaware corporation (the "Company"), on deposit with the Depositary, subject to
the terms and entitled to the benefits of the Deposit Agreement dated as of
[DATE] (the "Deposit Agreement"), between the Company, the Depositary and the
holders from time to time of the Receipts issued thereunder. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depository, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated: Countersigned:
------------------ ---------------------
Depositary Registrar
By: By:
-------------- -----------------
Authorized Officer Authorized Officer
[FORM OF REVERSE OF RECEIPT]
GLOBAL SIGNAL INC.
GLOBAL SIGNAL INC. WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT HOLDER
WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR SUMMARY OF
THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH THE COMPANY
IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF
SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE
TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.
The following abbreviations when used in the inscription on the face
of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties Act
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ________ Custodian _______
(Cust) (Minor)
Under Uniform Gifts to Minors Act ______________
(State)
Additional abbreviations may also be used though not in the above list.
[FORM OF ASSIGNMENT]
For value received, _______________ hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_________________________________________ Depositary Shares represented by the
within Receipt, and do hereby irrevocably constitute and appoint
________________________________________ [his/her] Attorney, to transfer the
said Depositary Shares on the books of the within-named Depositary with full
power of substitution in the premises.
Signature:
-----------------------
[DATE]
NOTICE: The signature to the assignment must correspond with the name as
written upon the face of this Receipt in every particular, without
alteration or enlargement or any change whatever.
(GUARANTEE OF SIGNATURE/S)
Authorized Signature
----------------------------
Name and Title
---------------------------------
Dated
------------
Name of Firm:
----------------------------------
Notice: If applicable, all signatures on this assignment must be guaranteed by a
firm that is a member of a registered national securities exchange of
the National Association of Securities Dealers, Inc., or by a commercial
bank or trust company having an office or correspondent in the United
States (an "Eligible Institution"). However, signatures need not be
guaranteed if this assignment is made for the account of an Eligible
Institution.
